| People v Rabanal |
| 2016 NY Slip Op 03534 [139 AD3d 758] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Manuel Rabanal, Appellant. |
Thomas T. Keating, Dobbs Ferry, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and Ilisa Fleischerof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Carter, J.), rendered December 5, 2012, convicting him of predatory sexual assaultagainst a child (two counts), incest in the first degree, and endangering the welfare of achild, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court did not err in admittingevidence of his alleged history of violence. The evidence was relevant to explain why thecomplainant, who was the defendant's daughter, and an eyewitness, who was thedefendant's mother-in-law, failed to promptly report the defendant's sexual assault of thecomplainant, and provided necessary background information on the nature of therelationship between the defendant, the complainant, and the eyewitness (see People v Gamble, 18 NY3d386, 398 [2012]; People vJean, 127 AD3d 882 [2015]; People v Hill, 121 AD3d 469, 469 [2014]; People v Holden, 82 AD3d1007 [2011]; People v Watson, 281 AD2d 691 [2001]). The court properlybalanced the probative value of the evidence against the potential prejudice (seePeople v Gamble, 18 NY3d at 398; People v Basir, 179 AD2d 662 [1992]).The court also gave the appropriate instruction to the jury as to the limited purpose forwhich the evidence should be considered (see People v Dorm, 12 NY3d 16, 19 [2009]).
"Admission of expert testimony is left to the sound discretion of the trial court and'dependent on whether the expert testimony would help to clarify an issue calling forprofessional or technical knowledge, possessed by the expert and beyond the ken of thetypical juror' " (People vNicholson, 26 NY3d 813, 828 [2016], quoting People v Williams, 20 NY3d579, 583-584 [2013] [internal quotation marks omitted]). The Supreme Court didnot improvidently exercise its discretion in permitting the prosecution's expert medicalwitness to testify regarding the results of, and her professional opinion arising out of, hermedical examination of the complainant (see People v Seignious, 114 AD3d 883 [2014]; Peoplev Sparman, 202 AD2d 452 [1994]).
Moreover, it was not an improvident exercise of the Supreme Court's discretion topermit the People to recall the complainant's mother as a witness to address an issueraised during [*2]the cross-examination of thecomplainant, particularly since the People had not rested at the time she was recalled (see People v Brown, 111AD3d 1385 [2013]; People v Rostick, 244 AD2d 768, 768-769 [1997]).
Contrary to the defendant's contention, the record reveals that defense counselprovided him meaningful representation and the defendant was not deprived of effectiveassistance of counsel (seePeople v Wragg, 26 NY3d 403 [2015]; People v Taylor, 1 NY3d 174, 176-177 [2003]; People v Sivertson, 129 AD3d1467, 1469 [2015], lv granted 26 NY3d 1092 [2015]; People v Stevenson, 129 AD3d998, 999 [2015]; People vCruz, 127 AD3d 987, 988 [2015]).
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. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348 [2007]), we nevertheless accord great deference to the jury's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Austin, J.P., Cohen, Miller and Duffy, JJ.,concur.
Motion by the appellant, inter alia, on an appeal from a judgment of the SupremeCourt, Nassau County, rendered December 5, 2012, to enlarge the record to include aletter marked for identification at trial as defendant's exhibit A. By decision and order onmotion of this Court dated March 11, 2016, that branch of the motion was held inabeyance and referred to the panel of Justices hearing the appeal for determination uponthe argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the argument of the appeal, it is
Ordered that the branch of the motion which is to enlarge the record to include theletter marked for identification at trial as defendant's exhibit A is denied. Austin, J.P.,Cohen, Miller and Duffy, JJ., concur.