Opinion
2022–06043 Ind. No. 2497/19
12-13-2023
The PEOPLE, etc., respondent, v. Jose A. NIVELO, appellant.
Randall D. Unger, Kew Gardens, NY, for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Jonathan E. Maseng of counsel), for respondent.
Randall D. Unger, Kew Gardens, NY, for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Jonathan E. Maseng of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, LARA J. GENOVESI, LILLIAN WAN, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ushir Pandit–Durant, J.), rendered July 26, 2022, convicting him of course of sexual conduct against a child in the first degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 23 years, to be followed by a period of postrelease supervision of 15 years.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed from a determinate term of imprisonment of 23 years, to be followed by a period of postrelease supervision of 15 years, to a determinate term of imprisonment of 17 years, to be followed by a period of postrelease supervision of 15 years; as so modified, the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that he was deprived of his right to a fair trial by the Supreme Court's participation in the questioning of the trial witnesses (see CPL 470.05[2] ; People v. Ojeda, 118 A.D.3d 919, 919, 988 N.Y.S.2d 222 ). In any event, while certain of the court's interventions were improper, when the record is viewed as a whole, the court's conduct did not prevent the jury from arriving at an impartial verdict on the merits (see People v. Moulton, 43 N.Y.2d 944, 946, 403 N.Y.S.2d 892, 374 N.E.2d 1243 ; People v. Reid, 212 A.D.3d 845, 847, 182 N.Y.S.3d 228 ; People v. Martinez, 201 A.D.3d 658, 660, 159 N.Y.S.3d 140 ). Further, the record as a whole demonstrates that the court was impartial and not biased against the defendant (see People v. Reid, 198 A.D.3d 819, 820, 156 N.Y.S.3d 79 ; People v. Ojeda, 118 A.D.3d at 919, 988 N.Y.S.2d 222 ). The defendant's contention that certain remarks made by the prosecutor during summation were improper and deprived him of a fair trial is unpreserved for appellate review, since the defendant failed to object to the remarks at issue (see CPL 470.05[2] ; People v. Stallone, 204 A.D.3d 841, 842, 166 N.Y.S.3d 272 ). In any event, the contention is without merit. The challenged remarks, for the most part, were fair response to defense counsel's comments during summation (see People v. Medina, 207 A.D.3d 570, 572, 171 N.Y.S.3d 175 ), and any improper remarks were not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v. Rochard, 219 A.D.3d 639, 195 N.Y.S.3d 41 ).
The defendant's contention that the Supreme Court penalized him for exercising his right to a jury trial is unpreserved for appellate review, since he did not raise it at the sentencing hearing (see People v. Ellerbee, 203 A.D.3d 1068, 1070, 165 N.Y.S.3d 592 ). In any event, the record fails to establish that the court penalized the defendant for exercising his right to proceed to trial (see People v. Martinez, 26 N.Y.3d 196, 200, 21 N.Y.S.3d 196, 42 N.E.3d 693 ; People v. Baptiste, 204 A.D.3d 825, 827, 164 N.Y.S.3d 510 ). However, the sentence imposed was excessive to the extent indicated herein (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BRATHWAITE NELSON, J.P., MILLER, GENOVESI and WAN, JJ., concur.