Opinion
06-22-2016
The PEOPLE, etc., respondent, v. Gustavo VASQUEZ, appellant.
Joseph W. Murray and Robert M. Fantone, Kew Gardens, N.Y., for appellant. Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Joseph W. Murray and Robert M. Fantone, Kew Gardens, N.Y., for appellant.
Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, BETSY BARROS and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered January 10, 2014, convicting him of criminal sexual act in the first degree, sexual abuse in the first degree, and endangering the welfare of a child, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence 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 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 factfinder'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 ; 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. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The Supreme Court providently exercised its discretion in determining that the eight-year-old complainant was competent to give sworn testimony (see CPL 60.20[2] ; People v. Morales, 80 N.Y.2d 450, 453, 591 N.Y.S.2d 825, 606 N.E.2d 953 ; People v. Mendoza, 49 A.D.3d 559, 560, 853 N.Y.S.2d 364 ). The examination of the child revealed that she knew the difference between telling the truth and telling a lie, knew the meaning of an oath, understood that she could be punished if she lied, promised to tell the truth, and had the ability to recall and relate prior events (see People v. Morales, 80 N.Y.2d at 453, 591 N.Y.S.2d 825, 606 N.E.2d 953 ; People v. Stalter, 77 A.D.3d 776, 909 N.Y.S.2d 516 ; People v. Mendoza, 49 A.D.3d at 560, 853 N.Y.S.2d 364 ; People v. McIver, 15 A.D.3d 677, 678, 791 N.Y.S.2d 587 ). The defendant's contention that the court improvidently exercised its discretion in permitting the complainant's seven-year-old sibling to testify as an unsworn witness is unpreserved for appellate review and, in any event, without merit (see CPL 60.20[2] ; People v. Rivers, 149 A.D.2d 544, 544–545, 539 N.Y.S.2d 999 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).