| People v Martinez |
| 2013 NY Slip Op 07405 [111 AD3d 430] |
| November 12, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Antonio Martinez, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Karen Swiger of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Darcel D. Clark, J.), rendered April 5,2010, as amended May 9, 2012, convicting defendant, after a jury trial, of rape in the firstdegree, sexual abuse in the first degree, sexual misconduct, and endangering the welfareof a child, and sentencing him to an aggregate term of 10 to 20 years, affirmed.
Defendant's legal sufficiency claim is unpreserved and we decline to review it in theinterest of justice. As an alternative holding, we reject it on the merits. We also find thatthe verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations. The victim's account was consistent with medical testimony and waspartially corroborated by other evidence.
Defendant did not preserve his statute of limitations argument regarding the chargeof endangering the welfare of a child, and we decline to review it in the interest ofjustice. We note that defense counsel may have had a strategic reason for keeping thismisdemeanor charge in the case for the jury's consideration, even if it was time-barred.
We perceive no basis for reducing the sentence. Concur—Gonzalez, P.J.,Mazzarelli and DeGrasse, JJ.
Andrias, J., dissents in part in a memorandum as follows: In March 2008, defendantwas convicted, after a jury trial, of rape in the first degree, sexual abuse in the firstdegree, sexual misconduct, and endangering the welfare of a child based on allegationsthat, on May 18, 1998, he engaged in sexual intercourse with a six-year-old child [*2]who was staying with his family while her parents wereaway. Defendant was acquitted of course of sexual conduct against a child in the firstdegree.
Defendant was originally sentenced, as a first felony offender, to concurrentdeterminate prison terms of 20 years for the first-degree rape charge, seven years for thefirst-degree sexual abuse charge, and one year for each of the misdemeanor charges. Thedeterminate sentences imposed on the felony counts were illegal and defendant wasresentenced to an aggregate term of 10 to 20 years.
The case turned largely upon the credibility of the victim, whose parent reported thealleged sexual abuse to the police in 2007. Although a different verdict would not havebeen unreasonable, I agree with the majority that this is not an appropriate case tosubstitute our credibility determinations for those made by the jury and that none of thearguments raised by defendant warrants reversal of his convictions. However, I believethat the sentence of 10 to 20 years, the maximum available at defendant's resentencing(see People v Spears, 228 AD2d 193 [1st Dept 1996]), is unduly harsh under theparticular circumstances of this case.
Defendant is 53 years old. He has no prior criminal record and had otherwise lived alaw abiding life. Born into poverty in the Dominican Republic, he became a lawfulresident of the United States and the successful owner of an automobile repair shop inNew York with six employees. While defendant left school in the 8th grade to helpsupport his family, he put his two children through college. Numerous family members,community members and customers submitted letters on defendant's behalf attesting tohis good works. Defendant will be deported and barred from the United States after hecompletes his sentence, at which time he will most likely be in his 60's (see People v Marra, 96 AD3d1623, 1627 [4th Dept 2012] ["We agree with defendant, however, that, in light ofhis age, his lack of a prior criminal record and other mitigating circumstances, thesentence of a determinate term of incarceration of 18 years (for first-degree rape)followed by 15 years of postrelease supervision is unduly harsh and severe"],affd 21 NY3d 979 [2013]).
While the People argue that defendant's sentence was fair and proper, I note thatprior to trial the People had offered defendant a plea to second degree rape, a class Dfelony, with a probationary sentence. Through jury selection, the People continued tooffer a 10 year probationary sentence, with a plea to either first-degree sexual abuse orsecond-degree rape (see Peoplev Cruz, 41 AD3d 893 [3d Dept 2007], lv denied 10 NY3d 933 [2008]).
Accordingly, I dissent in part and as a matter of discretion in the interest of justicewould reduce defendant's sentence to an aggregate term of 6 to 12 years, whichappropriately takes into account the abhorrent nature of his conduct.