Opinion
No. 434 KA 18-00691
06-03-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. RAMON MERCADO-GOMEZ, DEFENDANT-APPELLANT.
JOHN J. RASPANTE, UTICA, FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (EVAN A. ESSWEIN OF COUNSEL), FOR RESPONDENT.
JOHN J. RASPANTE, UTICA, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (EVAN A. ESSWEIN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND BANNISTER, JJ.
Appeal from a judgment of the Oneida County Court (Robert Bauer, J.), rendered December 8, 2017. The judgment convicted defendant upon a jury verdict of predatory sexual assault against a child, sexual abuse in the first degree (three counts), criminal sexual act in the third degree, sexual abuse in the third degree and endangering the welfare of a child (two counts).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, predatory sexual assault against a child (Penal Law § 130.96) and three counts of sexual abuse in the first degree (§ 130.65 [4]). We affirm.
Contrary to defendant's contention, viewing the evidence in the light most favorable to the People (see People v Contes, 60 N.Y.2d 620, 621 [1983]), we conclude that the evidence is legally sufficient to support the conviction (see People v Bleakley, 69 N.Y.2d 490, 495 [1987]; People v Riley, 182 A.D.3d 1017, 1018 [4th Dept 2020], lv denied 35 N.Y.3d 1069 [2020]) because there is "a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime[s] proved beyond a reasonable doubt" (People v Danielson, 9 N.Y.3d 342, 349 [2007] [internal quotation marks omitted]).
Further, viewing the evidence in light of the elements of the crimes as charged to the jury (see id.), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495). Where, as here, "witness credibility is of paramount importance to the determination of guilt or innocence, we must give great deference to the jury, given its opportunity to view the witnesses and observe their demeanor" (People v Streeter, 118 A.D.3d 1287, 1288 [4th Dept 2014], lv denied 23 N.Y.3d 1068 [2014], reconsideration denied 24 N.Y.3d 1047 [2014] [internal quotation marks omitted]; see People v McKay, 197 A.D.3d 992, 993 [4th Dept 2021], lv denied 37 N.Y.3d 1060 [2021]). Here, the jury was "entitled to credit the testimony of the People's witnesses, including that of the victim[s], over the testimony of defendant's witnesses, including that of defendant [himself]," and we perceive no reason to disturb the jury's credibility determinations in that regard (People v Tetro, 175 A.D.3d 1784, 1788 [4th Dept 2019]). We conclude that there was nothing about the victims' trial testimony that was "manifestly untrue, physically impossible, contrary to experience, or self-contradictory" (People v Barnes, 158 A.D.3d 1072, 1073 [4th Dept 2018], lv denied 31 N.Y.3d 1011 [2018] [internal quotation marks omitted]). To the extent that there were any inconsistencies in or between the two victims' testimony, we conclude that their testimony, considered either singly or together, "was not 'so inconsistent or unbelievable as to render it incredible as a matter of law'" (People v Lewis, 129 A.D.3d 1546, 1548 [4th Dept 2015], lv denied 26 N.Y.3d 969 [2015]; see People v O'Neill, 169 A.D.3d 1515, 1515-1516 [4th Dept 2019]), and any such inconsistencies merely presented issues of credibility for the jury to resolve (see People v Cross, 174 A.D.3d 1311, 1314-1315 [4th Dept 2019], lv denied 34 N.Y.3d 950 [2019]). Further, defendant's contention concerning the lack of forensic evidence corroborating the victims' testimony is unavailing "inasmuch as the testimony of [the victims] can be enough to support a conviction" (People v Goodson, 144 A.D.3d 1515, 1515-1516 [4th Dept 2016], lv denied 29 N.Y.3d 949 [2017] [internal quotation marks omitted]; see Streeter, 118 A.D.3d at 1288; see generally People v Foulkes, 117 A.D.3d 1176, 1176-1177 [3d Dept 2014], lv denied 24 N.Y.3d 1084 [2014]; People v Lozada, 41 A.D.3d 1042, 1043 [3d Dept 2007], lv denied 9 N.Y.3d 924 [2007]).
Contrary to defendant's further contention, we conclude that the sentence is not unduly harsh or severe.