| People v Menendez |
| 2008 NY Slip Op 03671 [50 AD3d 1061] |
| April 22, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ArielMenendez, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Richard LongworthHecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered July 25, 2006, convicting him of murder in the first degree (two counts),rape in the first degree, and criminal sexual act in the first degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing, of that branch ofthe defendant's omnibus motion which was to suppress his statements made to law enforcementofficials.
Ordered that the judgment is affirmed.
Since the statements the defendant made to law enforcement officials were not introduced attrial, his contention that they were made without the benefit of Miranda warnings (seeMiranda v Arizona, 384 US 436 [1966]) is academic for purposes of this appeal (see People v Nevins, 16 AD3d1046, 1048 [2005]; People v Vanier, 178 AD2d 501 [1991]; People vAdames, 168 AD2d 623 [1990]).
The trial court's preliminary instructions, as a whole, were accurate as to the burden of proof(see People v Fields, 87 NY2d 821, 823 [1995]; People v Belk, 238 AD2d 346[1997]; People v Rodriguez, 155 AD2d 627 [1989], affd 76 NY2d 918 [1990]).Moreover, in the single instance where the preliminary instruction was inaccurate, the defendantdeclined the issuance of curative instructions (see People v Young, 48 NY2d 995, 996[1980]; People v Simmons, 204 AD2d 214, 215 [1994]).
The defendant contends that testimony of a sexual assault nurse examiner should have beenprecluded because she was unqualified to render an expert opinion and her testimony shifted theburden of proof and was speculative. However, only the defendant's challenge to her testimony as[*2]speculative is preserved for appellate review. In any event,the defendant's contentions are without merit. Given the education and employment history of thewitness, who was a registered nurse, the trial court providently exercised its discretion inpermitting her to provide expert testimony (see Matott v Ward, 48 NY2d 455, 459[1979]; People v Lewis, 16 AD3d173 [2005]; People vMorehouse, 5 AD3d 925, 928 [2004]). The witness's testimony that a large percentageof sexual assault victims exhibit no physical injuries to their sexual organs did not shift theburden of proof (see People v Heer,12 AD3d 1154, 1155 [2004]; People v Shelton, 307 AD2d 370, 371 [2003],affd 1 NY3d 614 [2004]; People v Paun, 269 AD2d 546 [2000]; People vHouston, 250 AD2d 535 [1998]; People v Green, 239 AD2d 248, 249 [1997];People v Smith, 202 AD2d 366 [1994]). Nor was her testimony speculative, given that itwas based upon evidence already received (see Tarlowe v Metropolitan Ski Slopes, 28NY2d 410, 414 [1971]; People v Cruz, 233 AD2d 102 [1996], affd 90 NY2d 961[1997]).
The defendant's contention that the trial court improvidently exercised its discretion infinding that a police witness was qualified to render an expert opinion in the field of bloodsplatter analysis is without merit, as the witness demonstrated that he possessed the "requisiteskill, training, education, knowledge or experience" to provide a reliable opinion (Matott vWard, 48 NY2d at 459; see Peoplev Hicks, 2 NY3d 750, 751 [2004]; People v Eckhardt, 305 AD2d 860, 864[2003]; People v Rivera, 236 AD2d 428, 429 [1997]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of the crimes charged beyond a reasonable doubt.
Moreover, resolution of issues of credibility is primarily a matter to be determined by thejury, which saw and heard the witnesses, and its determination should be accorded greatdeference on appeal (see People vRomero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410[2004], cert denied 542 US 946 [2004]). Upon the exercise of our factual review power(see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weightof the evidence (see People vRomero, 7 NY3d 633 [2006]; People v Price, 5 AD3d 117, 118 [2004]; People v Shelton,307 AD2d at 371; People v Slater, 173 AD2d 1024, 1028 [1991]).
The defendant's remaining contentions are either without merit or do not require reversal.Skelos, J.P., Dillon, Leventhal and Chambers, JJ., concur.