| People v Arroyo |
| 2015 NY Slip Op 01654 [125 AD3d 987] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jose Arroyo, Appellant. |
Goldstein & Weinstein, Bronx, N.Y. (David J. Goldstein of counsel), forappellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Laurie G.
Sapakoff, and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Neary, J.), rendered March 12, 2010, convicting him of rape in the first degree,facilitating a sexual offense with a controlled substance, and assault in the second degree,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing, of those branches of the defendant's omnibus motion which were tosuppress physical evidence and his statements to law enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied thosebranches of his omnibus motion which were to suppress physical evidence and hisstatements to law enforcement officials. The evidence presented at the suppressionhearing demonstrated that the complainant effectively consented to the police entry intoand search of a motel room, in which both she and the defendant were occupants (seePeople v Pierre, 300 AD2d 324 [2002]; People v Schof, 136 AD2d 578,578-579 [1988]). The complainant had apparent authority to consent to the entry into andsearch of the motel room, and the police properly relied on that apparent authority(see People v Pierre, 300 AD2d 324 [2002]). Furthermore, the evidencepresented at the suppression hearing established that the defendant's statements to thepolice were voluntarily made (see People v Fonseca, 121 AD3d 915, 915-916[2014]).
The defendant's contention that there was legally insufficient evidence to convict himof rape in the first degree because the People failed to establish the element of sexualintercourse is unpreserved for appellate review (see People v Hawkins, 11 NY3d 484, 492 [2008];People v Gray, 86 NY2d 10, 19 [1995]). In any event, viewing the evidence inthe light most favorable to the prosecution (see People v Contes, 60 NY2d 620[1983]), we find that it was legally sufficient to establish the defendant's guilt of rape inthe first degree beyond a reasonable doubt (see Penal Law § 130.35[2]; People v West, 105AD3d 781, 781-782 [2013]). Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt as to that crime [*2]was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that the prosecutor's comments during summationdeprived him of his right to a fair trial is unpreserved for appellate review (seeCPL 470.05 [2]). In any event, the prosecutor's comments did not deprive thedefendant of a fair trial, as the challenged comments were either a fair response to thedefendant's attack on the credibility of the People's witnesses, or were within the boundsof appropriate argument based on the evidence (see People v Galloway, 54 NY2d396, 399 [1981]; People v Ashwal, 39 NY2d 105, 109-110 [1976]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Rivera, J.P., Balkin, Hall and Sgroi, JJ., concur.