Opinion
02-15-2017
The PEOPLE, etc., respondent, v. Juan Pablo ZELAYA, appellant.
Carol E. Castillo, East Setauket, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Caren C. Manzello of counsel), for respondent.
Carol E. Castillo, East Setauket, N.Y., for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Caren C. Manzello of counsel), for respondent.
REINALDO E. RIVERA, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, and VALERIE BRATHWAITE NELSON, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.), rendered May 5, 2014, convicting him of predatory sexual assault against a child, rape in the first degree (two counts), sexual abuse in the first degree (four counts), and endangering the welfare of a child (four counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence supporting his convictions 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, 621, 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 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 ; 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 defendant contends that the County Court committed reversible error by allowing a court officer to provide the deliberating jury with a documentary exhibit it had requested in the absence of the court and the parties. However, the defendant waived any challenge to this procedure when he stipulated at trial to the procedure that was followed (see generally People v. Kelly, 5 N.Y.3d 116, 121, 799 N.Y.S.2d 763, 832 N.E.2d 1179 ; People v. Armstrong, 138 A.D.3d 877, 879, 29 N.Y.S.3d 475 ). Moreover, the ministerial act of delivering the exhibit did not constitute a mode of proceedings error or deprive the defendant of a fair trial (see People v. Slavik, 277 A.D.2d 259, 715 N.Y.S.2d 340 ; People v. Griffin, 241 A.D.2d 501, 660 N.Y.S.2d 448 ).
The defendant's challenge to the admission of certain Facebook messages is only partially preserved for appellate review (see CPL 470.05[2] ) and, in any event, without merit (People v. Brown, 96 A.D.3d 869, 946 N.Y.S.2d 254 ; People v. Hutchinson, 255 A.D.2d 396, 681 N.Y.S.2d 42 ; People v. Brown, 214 A.D.2d 679, 625 N.Y.S.2d 925 ).
Similarly unavailing is the defendant's contention that a mistrial was warranted because testimony regarding a prior uncharged crime or bad act that he had committed was erroneously presented at trial. The record demonstrates that the single, brief reference to the incident was not elicited by the prosecutor, but was volunteered by a witness, whose testimony in this regard was ambiguous and, thus, open to interpretation. No other testimony was presented on this matter. Moreover, the County Court sustained the defendant's objection to the testimony, struck the testimony from the record, and instructed the jury to disregard it.
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions are without merit.