Opinion
14320 Ind. No. 1916/16 Case No. 2017-03341
10-07-2021
The PEOPLE of the State of New York, Respondent, v. Braulio A. JIMENEZ–GOMEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Anjali Pathmanathan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Victoria Muth of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Anjali Pathmanathan of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Victoria Muth of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Moulton, Gonza´lez, Pitt, JJ.
Judgment, Supreme Court, New York County (Ellen N. Biben, J. at speedy trial motion; Juan M. Merchan, J. at jury trial and sentencing), rendered April 17, 2018, convicting defendant of forcible touching, endangering the welfare of a child and sexual abuse in the third degree, and sentencing him to an aggregate term of one year, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–49, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). We find no basis for disturbing the jury's credibility determinations. Defendant did not preserve his speedy trial claims, and we decline to review them in the interest of justice. Defendant made a CPL 30.30 motion asserting the People's lack of readiness, but did not, by way of a reply or otherwise, challenge the People's specifically claimed exclusions (see People v. Allard, 28 N.Y.3d 41, 46–47, 41 N.Y.S.3d 196, 63 N.E.3d 1140 [2016] ). Defendant also did not make any specific assertions raising factual disputes that would require a hearing (see People v. Winston, 177 A.D.3d 524, 525, 113 N.Y.S.3d 57 [1st Dept. 2019] lv denied 34 N.Y.3d 1164, 120 N.Y.S.3d 275, 142 N.E.3d 1177 [2020] ). As an alternative holding, we find that the motion was correctly denied. Initially, defendant did not meet his burden of demonstrating that any of the People's certificates of readiness, which are presumed truthful and accurate, were illusory (see People v. Brown, 28 N.Y.3d 392, 405, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016] ). While the court should have charged to the People an additional 20 days for the period from October 6 to October 26, 2016, that period is insufficient to affect the outcome, and the remaining periods defendant contests were excludable based on exceptional circumstances (see CPL 30.30[4][g] ).
The court providently exercised its discretion in admitting the victim's text messages as excited utterances (see generally People v. Brown, 70 N.Y.2d 513, 520–22, 522 N.Y.S.2d 837, 517 N.E.2d 515 [1987] ). The statements at issue were clearly precipitated by an event that was startling and traumatic to the victim. In addition to her own testimony, her demeanor, as described by multiple witnesses, indicated that she still remained under the influence of the stress of the incident despite the lapse of time (see People v. Johnson, 129 A.D.3d 486, 11 N.Y.S.3d 136 [1st Dept. 2015] lv denied 26 N.Y.3d 1089, 23 N.Y.S.3d 646, 44 N.E.3d 944 [2015] ). Although some of the statements were responses to questions, this did not interrupt the stress and excitement of the underlying traumatic incident (see People v. Brooks, 71 N.Y.2d 877, 527 N.Y.S.2d 753, 522 N.E.2d 1051 [1988] ).
The court properly excluded, as hearsay, defendant's videotaped exculpatory statement (see People v. Reynoso, 73 N.Y.2d 816, 819, 537 N.Y.S.2d 113, 534 N.E.2d 30 [1988] ), and there was no violation of the rule of completeness (see People v. Dlugash, 41 N.Y.2d 725, 736, 395 N.Y.S.2d 419, 363 N.E.2d 1155 [1977] ). The prosecutor's use of portions of defendant's statement to impeach his credibility did not entitle defendant to introduce his entire statement to bolster his own credibility (see People v. Ramos, 70 N.Y.2d 639, 640–41, 518 N.Y.S.2d 783, 512 N.E.2d 304 [1987] ). Defendant also denied making many of the remarks used as impeachment, and the precluded statement was not necessary to clarify anything else in the cross-examination (see People v. Schneiderman, 295 A.D.2d 137, 137–38, 743 N.Y.S.2d 437 [1st Dept. 2002], lv denied 98 N.Y.2d 702, 747 N.Y.S.2d 421, 776 N.E.2d 10 [2002] ). Furthermore, the jury was made aware that defendant did, in fact, make a statement to law enforcement, and defendant has not established any basis for permitting him to elicit that he did so "voluntarily" (cf. People v. Torres, 289 A.D.2d 136, 734 N.Y.S.2d 174 [1st Dept. 2001], lv denied 97 N.Y.2d 762, 742 N.Y.S.2d 623, 769 N.E.2d 369 [2002] ).