| People v Evangelista |
| 2017 NY Slip Op 08282 [155 AD3d 972] |
| November 22, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Melchor Evangelista, Appellant. |
Neal D. Futerfas, White Plains, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Nancy Fitzpatrick Talcott, and Ayelet Sela of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter,J.), rendered May 21, 2015, convicting him of criminal sexual act in the first degree (threecounts), attempted rape in the first degree, sexual abuse in the first degree, attempted sexualabuse in the first degree, and endangering the welfare of a child, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
Evidence that a sexual assault victim promptly complained about the incident is admissibleto corroborate an allegation that an assault took place (see People v McDaniel, 81 NY2d10, 16 [1993]). An outcry is prompt if made " 'at the first suitable opportunity' "and is "a relative concept dependent on the facts" (id. at 17, quoting People vO'Sullivan, 104 NY 481, 486 [1887]). "There can be no iron rule on the subject. The lawexpects and requires that it should be prompt, but there is and can be no particular timespecified" (Higgins v People, 58 NY 377, 379 [1874]). "[W]hat might qualify as promptin one case might not in another" (People v McDaniel, 81 NY2d at 17).
Here, the trial court permitted testimony concerning one of the defendant's victim's first"outcry" to her parents approximately 4
The defendant's contention that the evidence supporting his convictions was legallyinsufficient is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish the [*2]defendant's guilt beyond a reasonable doubt.Moreover, 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 nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that certain remarks made by the prosecutor during summationwere improper and deprived him of a fair trial is unpreserved for appellate review (seeCPL 470.05 [2]; People v Moses,112 AD3d 447, 448 [2013]; Peoplev Nunez, 82 AD3d 1128, 1129 [2011]). In any event, the defendant's contention iswithout merit, as the challenged remarks were responsive to arguments raised by the defendant'scounsel during summation and constituted fair comment on the evidence (see People v Boyce, 54 AD3d1052, 1053 [2008]; People vSalnave, 41 AD3d 872, 874 [2007]; People v Tucker, 27 AD3d 592 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention is unpreserved for appellate review (see CPL470.05 [2]), and, in any event, without merit. Mastro, J.P., Chambers, LaSalle and BrathwaiteNelson, JJ., concur.