| People v Fernandez |
| 2014 NY Slip Op 02074 [115 AD3d 977] |
| March 26, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jose Fernandez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, Laura T. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Buchter, J.), rendered June 12, 2012, convicting him of rape in the first degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe their demeanor (see People v Mateo, 2 NY3d 383, 410 [2004],cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]). Any discrepancies between thecomplainant's prior out-of-court statements, the complainant's grand jury testimony, andthe complainant's trial testimony, "were not of such magnitude as to render [her]testimony incredible or unreliable" (People v Scipio, 61 AD3d 899, 899 [2009]).
The defendant's contention that the improper admission of certain photographs of thecomplainant deprived him of a fair trial is without merit. "[P]hotographs are admissible ifthey tend 'to prove or disprove a disputed or material issue, to illustrate or elucidate otherrelevant evidence, or to corroborate or disprove some other evidence offered or to beoffered' " (People v Wood, 79 NY2d 958, 960 [1992], quoting People vPobliner, 32 NY2d 356, 369 [1973]). They should be excluded " 'only if [their]sole purpose is to arouse the emotions of the jury and to prejudice the defendant'" (People v Wood, 79 NY2d at 960, quoting People v Pobliner, 32 NY2dat 370). Here, in light of the circumstances of this case, the trial court did notimprovidently exercise its discretion in admitting the photographs taken of thecomplainant at the hospital because they were relevant with respect to the nature andextent of the victim's injuries and their sole purpose was not to arouse theemotions of the jury and to prejudice the defendant (see People v Marra, 21 NY3d 979 [2013]).
The defendant's contention that certain portions of the testimony of a sexual assaultnurse examiner, who examined the complainant, constituted improper bolstering isunpreserved for appellate review, since no specific objections were made to thechallenged testimony (see CPL 470.05 [2]; People v Moore, 89 AD3d 769, 769-770 [2011]; People v Arroyo, 59 AD3d634, 634 [2009]). In any [*2]event, the testimonywas properly admitted (seePeople v Hicks, 55 AD3d 1138, 1141 [2008]; People v Ocampo, 52 AD3d741, 742 [2008]; People vRogers, 8 AD3d 888, 892 [2004]).
Contrary to the defendant's contentions, his right of confrontation (see USConst Sixth Amend) was not violated by the testimony of an assistant director employedby the Office of the Chief Medical Examiner of the City of New York (hereinafterOCME) and the admission into evidence of DNA profile reports generated by labtechnicians employed by the OCME. The assistant director conducted the actual analysisand interpretation of the data contained in the reports at issue. In this regard, the assistantdirector testified that she compared the DNA profiles derived from the sexual assaultevidence collection kit to the defendant's DNA profile and concluded that all of theprofiles matched. Consequently, the DNA profile reports were not testimonial, but rather,were merely raw data that, standing alone, did not link the defendant to the crime (see People v Brown, 13 NY3d332, 340 [2009]; People vRawlins, 10 NY3d 136, 159 [2008]; People v Washington, 108 AD3d 576, 577-578 [2013]; People v Thompson, 70 AD3d866, 866-867 [2010]; People v Dail, 69 AD3d 873, 875 [2010]).
The defendant's contention that the sentence imposed by the Supreme Courtimproperly penalized him for exercising his right to trial is unpreserved for appellatereview (see CPL 470.05 [2]; People v Hurley, 75 NY2d 887, 888 [1990];People v Johnson, 61 AD3d892, 893 [2009]; People vSadler, 49 AD3d 670, 671 [2008]). In any event, the record does not indicateany retaliation or vindictiveness against the defendant on the part of the Supreme Courtin arriving at the sentence and "the fact that the sentence imposed after trial was greaterthan the sentence offered during plea negotiations does not establish that he waspunished for asserting his right to proceed to trial" (People v Flores, 88 AD3d 902, 904 [2011]; see People v Munlyn, 67AD3d 1028, 1028-1029 [2009]; People v Best, 295 AD2d 441, 442 [2002]).Moreover, the sentence imposed was not excessive (see People v Suitte, 90AD2d 80 [1982]).
The defendant's remaining contention is without merit. Balkin, J.P., Sgroi, Cohenand LaSalle, JJ., concur.