Opinion
2012-01-24
The PEOPLE, etc., respondent, v. Jonathan ROELOFSEN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Karen Wigle Weiss of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Karen Wigle Weiss of counsel), for respondent.
MARK C. DILLON, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered December 3, 2009, convicting him of predatory sexual assault against a child, course of sexual conduct against a child in the first degree, sexual abuse in the first degree, and endangering the welfare of a child, upon a jury verdict, and sentencing him to an indeterminate term of 10 years to life imprisonment on the conviction of predatory sexual assault against a child, a determinate term of 10 years imprisonment on the conviction of course of sexual conduct against a child in the first degree to be followed by a period of 10 years of postrelease supervision, a determinate term of 2 years imprisonment on the conviction of sexual abuse in the first degree to be followed by a period of 10 years of postrelease supervision, and a definite term of 6 months imprisonment on the conviction of endangering the welfare of a child, with all sentences to run concurrently.
ORDERED that the judgment is modified, on the law, by vacating the periods of 10 years of postrelease supervision imposed on the convictions of course of sexual conduct against a child in the first degree and sexual abuse in the first degree; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for the imposition of new terms of postrelease supervision on those convictions.
The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of the crimes charged beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The defendant's contention that trial counsel's failure to preserve certain claims for appellate review constituted ineffective assistance of counsel is without merit ( see People v. Phillips, 84 A.D.3d 1274, 1274–1275, 923 N.Y.S.2d 867; People v. Friel, 53 A.D.3d 667, 668, 862 N.Y.S.2d 105; People v. McKenzie, 48 A.D.3d 594, 595, 852 N.Y.S.2d 217).
As the People correctly concede, the Supreme Court imposed illegal terms of postrelease supervision pursuant to Penal Law § 70.45(2–a) on the convictions of course of sexual conduct against a child in the first degree and sexual abuse in the first degree, since those crimes were committed before the effective date of that subdivision. Thus, the terms of postrelease supervision must be vacated, and the matter remitted to the Supreme Court, Queens County, for the imposition of new terms of postrelease supervision on those convictions pursuant to Penal Law § 70.45(2).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.