| People v Weberman |
| 2015 NY Slip Op 09128 [134 AD3d 862] |
| December 9, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Nechemya Weberman, Appellant. |
Mischel & Horn, P.C., New York, N.Y. (Richard E. Mischel of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andAnthea H. Bruffee of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered January 22, 2013, convicting him of course of sexual conductagainst a child in the first degree, criminal sexual act in the second degree (12 counts),criminal sexual act in the third degree (2 counts), sexual abuse in the second degree (18counts), sexual abuse in the third degree (25 counts), and endangering the welfare of achild, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions ofsexual abuse in the second degree under counts 45 and 46 of the indictment (submittedon the jury's verdict sheet as counts 31 and 32), vacating the sentences imposed thereon,and dismissing those counts of the indictment; as so modified, the judgment isaffirmed.
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 establish,beyond a reasonable doubt, the defendant's guilt of course of sexual conduct against achild in the first degree, criminal sexual act in the second degree under the third andfourth counts in the indictment, and sexual abuse in the second degree under the 31st,32nd, 59th, and 60th counts in the indictment (submitted on the jury's verdict sheet ascounts 17, 18, 45, and 46). However, as the People correctly concede, the evidence waslegally insufficient to establish the defendant's guilt of sexual abuse in the second degreeunder counts 45 and 46 of the indictment (submitted on the jury's verdict sheet as counts31 and 32) (see Penal Law § 130.60 [2]). Accordingly, we vacatethose convictions, vacate the sentences imposed thereon, and dismiss those counts of theindictment.
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, 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 all remaining counts was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
[*2] Contrary to the defendant's contention, he was notdeprived of his constitutional right to present a defense by the trial court's application ofthe Rape Shield Law (CPL 60.42). The defendant was given ample opportunity todevelop evidence at trial to support his position that his involvement with the arrest ofthe complainant's former boyfriend provided the complainant with a motive to fabricateher accusations against him (seePeople v Simmons, 106 AD3d 1115, 1116 [2013]; People v Weinberg, 75 AD3d612, 613 [2010]; People vRussillo, 27 AD3d 493 [2006]).
Furthermore, the trial court providently exercised its discretion in precluding thedefendant from cross-examining the complainant about alleged prior allegations ofsexual abuse, for which he did not provide a sufficient factual basis "to suggest a patterncasting substantial doubt on the validity of the [subject] charges" (People vMandel, 48 NY2d 952, 953 [1979]; see People v Piedra, 87 AD3d 706, 706 [2011]; Peoplev Breheny, 270 AD2d 926, 926 [2000]). The alleged prior accusations of sexualabuse were never reported to the police or reduced to formal charges (see People v Gunther, 67AD3d 1477, 1478 [2009]; People v Breheny, 270 AD2d at 926; People vDuggan, 229 AD2d 688, 689 [1996]; People v Passenger, 175 AD2d 944,946 [1991]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions, raised in point II of his main brief, that thetrial court's evidentiary rulings deprived him of his constitutional rights to a fair trial, dueprocess, and to present a defense, are without merit.
The defendant's remaining contentions are unpreserved for appellate review (seeCPL 470.05), and we decline to review them in the exercise of our interest of justicejurisdiction (see generallyPeople v Henderson, 120 AD3d 1258, 1259 [2014]). Mastro, J.P., Dickerson,Roman and Miller, JJ., concur.