| People v Herrera |
| 2018 NY Slip Op 03544 [161 AD3d 1006] |
| May 16, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rene Herrera, Appellant. |
Norman A. Olch, New York, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, John N. Ferdenzi, Tina Grillo, and Deborah Wassel of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (RichardBuchter, J.), rendered May 6, 2016, convicting him of course of sexual conduct against a child inthe second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
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]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant contends that the Supreme Court unfairly curtailed defense counsel'ssummation by sustaining the prosecutor's objection to defense counsel's comments regarding theprosecution's expert. This contention is without merit. Defense counsel exceeded the bounds offair comment by calling upon the jury to draw conclusions which were not fairly inferable fromthe evidence (see People v Ashwal, 39 NY2d 105, 109-110 [1976]; People vAndrews, 131 AD2d 580, 581 [1987]).
The defendant's contention that certain remarks made by the prosecutor during summationconstituted reversible error is unpreserved for appellate review, since he either failed to object tothe remarks at issue, or made only a general objection, and he failed to make a timely motion fora mistrial on the specific grounds he now asserts on appeal (see CPL 470.05 [2]; People v Romero, 7 NY3d 911,912 [2006]; People v Martin, 116AD3d 981, 982 [2014]; People vArena, 70 AD3d 1044, 1047 [2010]). In any event, the challenged portions of theprosecutor's summation were fair comment on the evidence and the reasonable inferences to bedrawn therefrom, were fair response to the defense counsel's summation, and were within thebounds of permissive rhetorical comment (see People v Galloway, 54 NY2d 396, 399[1981]; People v Ashwal, 39 NY2d at 109-110; People v Martin, 116 AD3d at982).
[*2] The Supreme Court providently exercised itsdiscretion in redacting a portion of a recording of a telephone call between the victim's motherand the defendant that was monitored by a detective. The court redacted the recording to excludea comment made by the mother to the detective after the conversation with the defendant wasover. Contrary to the defendant's contention, the mother's comment was not admissible as anexcited utterance or a present sense impression (see People v Cantave, 21 NY3d 374, 382 [2013]; People vCarroll, 95 NY2d 375, 385 [2000]), or under the rule of completeness (cf. People vTorre, 42 NY2d 1036, 1037 [1977]; People v Dlugash, 41 NY2d 725, 736[1977]).
Defense counsel's failure to request an intoxication charge did not amount to ineffectiveassistance of counsel inasmuch as this charge would have been inconsistent with the defensetheory that there was no sexual contact with the victim (see People v Ackerman, 141 AD3d 948, 950 [2016]; People vPacheco, 135 AD2d 744, 745 [1987]). Although the defendant could have chosen to presentinconsistent defenses, such a strategic risk "is not one that the court may foist on an unwillingdefendant" (People v Bradley, 88 NY2d 901, 903 [1996]). As such, the Supreme Courtdid not err in failing to charge the jury on intoxication, sua sponte, since the defendant's theory attrial was that he did not commit the assaults (see People v Bradley, 88 NY2d at903-904).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention is without merit. Chambers, J.P., Hinds-Radix,Maltese and Iannacci, JJ., concur.