| People v Wiley |
| 2014 NY Slip Op 05358 [119 AD3d 821] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Brian W. Wiley, Appellant. |
Frederick K. Brewington, Hempstead, N.Y., for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Laurie K.Gibbons of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Kase, J.), rendered December 17, 2012, convicting him of sexual abuse in the firstdegree, forcible touching, and assault in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt of sexual abuse in the first degree (Penal Law § 130.65[1]), forcible touching (Penal Law § 130.52), and assault in the third degree(Penal Law § 120.00 [1]) beyond a reasonable doubt. Moreover, infulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt as to those crimes was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633, 643 [2006]). Contrary to the defendant'sarguments, there was sufficient circumstantial evidence from which a reasonable jurycould infer that the defendant subjected the complainant to sexual contact (seePenal Law § 130.00 [3]; cf. People v McDade, 14 NY3d 760, 761 [2010]) andadditionally caused physical injury (see Penal Law § 10.00 [9]).Furthermore, the element of sexual gratification could be inferred from the circumstancesand the defendant's conduct (seePeople v Hill, 34 AD3d 1130, 1131 [2006]; People v Ortiz, 16 AD3d 831, 833 [2005]).
The Supreme Court properly denied the defendant's request to charge the jury withrespect to the defense of justification under the emergency doctrine since, viewing theevidence in the light most favorable to the defendant, there was no reasonable view ofthe evidence supporting the elements of the defense (see Penal Law§ 35.05 [2]; Peoplev Rodriguez, 16 NY3d 341, 345 [2011]; People v Craig, 78 NY2d 616,623 [1991]; People v Watts, 57 NY2d 299, 301 [1982]).
The defendant's contention that he was denied a fair trial by certain remarks made bythe prosecutor during summation is partially unpreserved for appellate review, as hefailed to object to many of the remarks about which he now complains (see CPL470.05 [2]; People v Romero, [*2]7 NY3d 911,912 [2006]; People vDouglas, 64 AD3d 726, 727 [2009]). In any event, most of the challengedremarks were within the broad bounds of rhetorical comment permissible in closingarguments, fair comment on the evidence, or responsive to arguments and theoriespresented in the defense summation (see People v Halm, 81 NY2d 819, 821[1993]; People v Galloway, 54 NY2d 396, 399 [1981]; People v Ashwal,39 NY2d 105, 109-110 [1976]; People v Turner, 214 AD2d 594 [1995]). To theextent that some of the prosecutor's remarks were improper, the defendant was notdeprived of a fair trial by those remarks. Any other error in this regard was harmless, asthere was overwhelming evidence of the defendant's guilt, and no significant probabilitythat the error contributed to the defendant's convictions (see People v Crimmins,36 NY2d 230, 241-242 [1975]).
The defendant's remaining contention is without merit. Dillon, J.P., Hall, Miller andHinds-Radix, JJ., concur.