| People v Hernandez |
| 2015 NY Slip Op 03184 [127 AD3d 991] |
| April 15, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rodolfo Hernandez, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Anna Pervukhin and Lisa Napoli of counsel),for appellant.
Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbartand Anne Grady of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Rooney, J.), rendered May 1, 2009, convicting him of sexual abuse in the first degreeand endangering the welfare of a child, upon a jury 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 demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Contrary to the defendant's contention, the child's out-of-court-communications, astestified to by her parents, were not erroneously admitted into evidence under the excitedutterance exception to the hearsay rule. The surrounding circumstances reasonably justifythe conclusion that the child's communications were not made under the impetus ofstudied reflection (see People v Edwards, 47 NY2d 493, 497 [1979]; People v Whitlock, 95 AD3d909, 910 [2012]; People vClemente, 84 AD3d 829, 830 [2011]). Further, because the communicationswere nontestimonial in nature, the admission of this evidence did not violate thedefendant's right to confront a witness against him (see People v Clemente, 84AD3d at 830; People vLegere, 81 AD3d 746, 750 [2011]; People v Melendez, 71 AD3d 1166, 1167 [2010]).
The defendant's challenge to certain testimony of the People's medical expert isunpreserved for appellate review (see People v Arroyo, 59 AD3d 634, 634 [2009]; People v Clas, 54 AD3d770, 770 [2008]), and, in any event, is without merit (see generally People v Rivers,18 NY3d 222, 228 [2011]).
Viewed in their totality, the circumstances reveal that the defendant was not deprivedof the effective assistance of counsel (see Strickland v Washington, 466 US 668[1984]; People v Baldi, 54 NY2d 137 [1981]).
[*2] The defendant's remaining contention is without merit.Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.