| People v Tapia |
| 2017 NY Slip Op 01894 [148 AD3d 940] |
| March 15, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Augustin Tapia, Appellant. |
Lynn W. L. Fahey, New York, NY (Samuel Brown of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Lori Glachman,and Kristen A. Carroll of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Harrington,J.), rendered September 27, 2013, convicting him of burglary in the second degree, endangeringthe welfare of a child, sexual abuse in the third degree, and harassment in the second degree,upon a jury verdict, and sentencing him to a determinate term of imprisonment of eight years, tobe followed by a period of postrelease supervision of five years, on the conviction of burglary inthe second degree, a definite term of incarceration of one year on the conviction of endangeringthe welfare of a child, a definite term of incarceration of 90 days on the conviction of sexualabuse in the third degree, and a definite term of incarceration of 15 days on the conviction ofharassment in the second degree, with all the terms to be served concurrently.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence imposed on the conviction of burglary in the second degree from adeterminate term of imprisonment of eight years, to be followed by a period of postreleasesupervision of five years, to a determinate term of imprisonment of six years, to be followed by aperiod of postrelease supervision of five years; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the People (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt. The defendant's intent can be inferred from his conduct and thesurrounding circumstances (see People v Bracey, 41 NY2d 296, 303 [1977]; People v Zapata, 98 AD3d 539,540 [2012]; People vChafla-Sanaicela, 84 AD3d 828, 829 [2011]). Moreover, in fulfilling our responsibilityto conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342,348-349 [2007]), we nevertheless accord great deference to the factfinder's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt was not against the weight of the evidence(see People v Romero, 7 NY3d633 [2006]).
The defendant's challenge to certain comments the prosecutor made during summation islargely unpreserved for appellate review (see CPL 470.05 [2]; People v Heide, 84[*2]NY2d 943, 944 [1994]; People v Malave, 7 AD3d 542, 542 [2004]). In any event, most ofthe challenged remarks were fair response to the defense counsel's summation, fair comment onthe evidence, or permissible rhetorical comment, and to the extent that some remarks wereimproper, they did not rise to the level of egregious misconduct that would have deprived thedefendant of a fair trial (see People vCole, 144 AD3d 699, 700 [2016]; People v Thomas, 143 AD3d 1006, 1007 [2016]; People v Maitland, 136 AD3d1058, 1059 [2016]).
The sentence imposed was excessive to the extent indicated herein.
The defendant's remaining contention is without merit. Eng, P.J., Leventhal, Cohen andDuffy, JJ., concur.