| People v Cordero |
| 2013 NY Slip Op 06471 [110 AD3d 1468] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CiritoM. Cordero, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), renderedAugust 30, 2011. The judgment convicted defendant, upon a jury verdict, of predatorysexual assault against a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of predatory sexual assault against a child (Penal Law § 130.96). Insofar asrelevant herein, a defendant commits the crime of predatory sexual assault against a childunder section 130.96 when, being 18 years old or more, he or she commits the crime ofaggravated sexual abuse in the first degree and the victim is less than 13 years old. Aperson is guilty of aggravated sexual abuse in the first degree when "he or she inserts aforeign object in the . . . rectum or anus of another person causing physicalinjury to such person . . . [w]hen the other person is less than [11] yearsold" (§ 130.70 [1] [c]). We reject defendant's contention that the evidence islegally insufficient to support the conviction because the sworn trial testimony of thesix-year-old victim was not corroborated. Following a competency hearing, CountyCourt determined that the victim understood the nature of an oath and thereafterpermitted him to give sworn testimony. Thus, there was no requirement that the victim'stestimony be corroborated (see CPL 60.20 [2], [3]). We reject defendant's furthercontention that the evidence is legally insufficient because the pediatric trauma surgeonwho repaired the victim's bowel did not testify that the instrument used to penetrate thevictim's anus and rectum was a fork. The victim testified that defendant used a fork topenetrate him, and the surgeon testified that the instrument used was at least 6centimeters long and had a sharp edge. We conclude that such testimony constituteslegally sufficient evidence to support the conviction (see generally People vBleakley, 69 NY2d 490, 495 [1987]).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495). "[N]othingin the record suggests that the victim was 'so unworthy of belief as to be incredible as amatter of law' or otherwise tends to establish defendant's innocence of [the] crime[ ]. . . , and thus it cannot be said that the jury failed to give the evidence theweight it should be accorded" (People v Woods, 26 AD3d 818, 819 [2006], lv denied7 NY3d 765 [2006]).[*2]
Contrary to defendant's contention, the court didnot abuse its discretion in permitting the prosecutor to use leading questions on directexamination of the child victim, particularly in view of the " 'intimate and embarrassingnature of the crime[ ]' " (People v Cuttler, 270 AD2d 654, 655 [2000], lvdenied 95 NY2d 795 [2000]; see People v Martina, 48 AD3d 1271, 1272 [2008], lvdenied 10 NY3d 961 [2008]). Also contrary to defendant's contention, the courtproperly denied his request for a missing witness charge with respect to a sexual assaultnurse examiner because " 'any testimony that [she] might have been expected to give wasalready before the jury through medical records and other expert testimony' "(Stevens v Brown, 249 AD2d 909, 910 [1998]; see People v Wright, 192AD2d 875, 877 [1993], lv denied 82 NY2d 809 [1993]).
We conclude that the court did not abuse its discretion in permitting the prosecutor tocross-examine defendant regarding his participation in an insurance fraud scheme (see People v Rivera, 70 AD3d1177, 1178-1179 [2010], lv denied 14 NY3d 891 [2010], 15 NY3d 855[2010]). Contrary to defendant's further contention, the court did not err in permitting theprosecutor to cross-examine him concerning the circumstances underlying his youthfuloffender adjudication (see People v Gray, 84 NY2d 709, 712 [1995]; cf. People v Dizak, 93 AD3d1182, 1183 [2012], lv denied 19 NY3d 972 [2012], reconsiderationdenied 20 NY3d 932 [2012]). We reject defendant's contention that the court erredin permitting the prosecutor to cross-examine him concerning his invocation of the rightto counsel. Defendant opened the door to that line of questioning during his testimony ondirect examination by creating the misleading impression that he had been arrestedwithout the opportunity to tell his side of the story (see Leecan v Lopes, 893 F2d1434, 1442 [1990], cert denied 496 US 929 [1990]; see generally People v Reid,19 NY3d 382, 388-389 [2012]). To the extent that the prosecutor during summationreferred to the victim's stuffed animal, i.e., a "little green frog," and commented that thevictim stood up to testify with all the "might of a 45[-]pound boy" and that "the lawrecognizes that children make the best victims," we conclude that such conduct, althoughimproper, was not so egregious as to deprive defendant of a fair trial (see People v Lopez, 96 AD3d1621, 1622 [2012], lv denied 19 NY3d 998 [2012]). Defendant's sentence isnot unduly harsh or severe.
We have reviewed defendant's remaining contentions and conclude that they arewithout merit. Present—Smith, J.P., Peradotto, Carni and Lindley, JJ.