| People v Vaello |
| 2012 NY Slip Op 00417 [91 AD3d 548] |
| Jnury 24, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JoseVaello, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Mary Jo L. Blanchard of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered January 28, 2009,convicting defendant, after a jury trial of rape in the first degree, sodomy in the first degree (twocounts) and sexual abuse in the first degree, and sentencing him, as a second violent felonyoffender, to an aggregate term of 50 years, unanimously affirmed.
The court properly exercised its discretion in permitting the People's expert, a licensed nursepractitioner certified as a sexual assault nurse examiner, to testify about the relationship betweenthe victim's genital injury and forcible sexual intercourse. Given the witness's broad experienceand training, she was qualified to testify about the physiological processes of a woman's bodyduring sexual activity, and, concomitantly, about how the victim's injury might have occurred inlight of those physiological processes (see People v Welch, 71 AD3d 1329, 1331 [2010], lv denied15 NY3d 811 [2010]). The witness did not express a direct opinion on the ultimate issue ofwhether the sexual conduct was forcible or consensual.
The court properly denied, without granting a hearing, defendants' CPL 330.30 (2) motion toset aside the verdict on the ground of improper conduct by or relating to a juror. Through hiscounsel, defendant asserted that a juror's husband made a postverdict remark to defendant thatsuggested the possibility of such improper conduct. However, on its face, the purported remarkmade no reference to defendant's case and the inferences defendant's seeks to draw are highlyspeculative. Therefore, even if defendant's allegations are viewed most favorably to defendant,they did not contain "sworn allegations . . . of all facts essential to support themotion" (CPL 330.40 [2] [a]). Moreover, the People submitted an affidavit from the juror'shusband denying having made the alleged remark, as well as documentary evidence tending toshow that the purported conversation between defendant and the juror's husband could not havetaken place. Under these circumstances, a hearing would have served no useful purpose.Defendant is "not entitled to a hearing based on expressions of hope that a hearing might revealthe essential facts" (People vJohnson, 54 AD3d 636, 636 [2008], lv denied 11 NY3d 898 [2008]).
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Friedman,DeGrasse, Richter and Manzanet-Daniels, JJ.