| People v Verrilli |
| 2010 NY Slip Op 00714 [69 AD3d 963] |
| January 26, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Pasquale A. Verrilli, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert H. Middlemiss of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.),rendered March 7, 2008, convicting him of rape 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 certain statements he made to lawenforcement officials.
Ordered that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motion which wasto suppress certain statements he made to law enforcement officials because a reasonable person,innocent of any crime, would not have believed that he was in custody at the time the defendantmade those statements (see People v Yukl, 25 NY2d 585, 589 [1969], certdenied 400 US 851 [1970]; People v Watson, 17 AD3d 385 [2005]; People vParsad, 243 AD2d 510 [1997], cert denied 540 US 1091 [2003]).
The defendant's contention that the evidence of guilt was legally insufficient because thePeople failed to establish the element of penetration (see Penal Law § 130.00 [1])is without merit. Viewing the evidence adduced at trial in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt (see People vBumbray, 63 AD3d 412 [2009]; People v Castaldi, 24 AD3d 567 [2005]). Moreover,upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict ofguilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant contends that the testimony of two sexual assault nurse examiners shouldhave been precluded because they were unqualified to render expert opinions. However, only thedefendant's challenge to the testimony of one sexual assault nurse examiner is preserved forappellate review (see CPL 470.05 [2]). In any event, given the education andemployment history of both witnesses, who were registered nurses, the trial court providentlyexercised its discretion in permitting them to provide expert testimony (see Matott vWard, 48 NY2d 455, 459 [1979]; People v Menendez, 50 AD3d 1061, 1062 [2008];People v Morehouse, 5 AD3d 925, 928 [2004]).[*2]
The defendant's contention that the victim's hospitalrecords were improperly admitted into evidence under the business records exception to thehearsay rule is unpreserved for appellate review (see CPL 470.05 [2]) and, in any event,is without merit (see CPLR 4518 [a]; People v Rogers, 8 AD3d 888, 892 [2004];People v Bell, 286 AD2d 443 [2001]).
The court properly permitted the victim's sister to testify, under the "prompt outcry"exception to the hearsay rule, that the victim told the sister that the defendant had raped her(see People v Shelton, 1 NY3d 614, 615 [2004]; People v McDaniel, 81 NY2d10, 16 [1993]; People v Aller, 33 AD3d 621, 622 [2006]; People v Felix, 32AD3d 1177, 1178 [2006]). Rivera, J.P., Dillon, Belen and Roman, JJ., concur.