| People v Whetstone |
| 2016 NY Slip Op 00898 [136 AD3d 476] |
| February 9, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Felix Whetstone, Appellant. |
Feldman and Feldman, Uniondale (Steven A. Feldman of counsel), forappellant.
Felix Whetstone, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Lee M. Pollack of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.) rendered January22, 2014, convicting defendant, after a jury trial, of sexual abuse in the first degree, andsentencing him, as a second violent felony offender, to a term of six years, unanimouslyaffirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing thejury's evaluation of expert testimony, which established that the DNA evidence at issuewas reliable, and that defendant's DNA was deposited on the victim's clothing during thesexual attack rather than on some hypothetical occasion. In addition, although the victimcould not identify defendant, he generally matched the victim's description of herattacker.
Defendant failed to preserve his challenge to the court's charge, and we decline toreview it in the interest of justice. As an alternative holding, we find that even assumingthe challenged language about two inferences should have been avoided, the charge as awhole, which included thorough instructions on such subjects as the presumption ofinnocence, the People's burden of proof, reasonable doubt and circumstantial evidence,conveyed the proper standards (see People v Samuels, 99 NY2d 20, 25 [2002];People v Cooper, 233 AD2d 267 [1st Dept 1996], lv denied 89 NY2d 984[1997]). Concur—Friedman, J.P., Acosta, Andrias, Saxe and Feinman, JJ.