| People v Hernandez |
| 2018 NY Slip Op 07450 [166 AD3d 647] |
| November 7, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Juan Hernandez, Appellant. |
Paul Skip Laisure, New York, NY (Lisa Napoli of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, andAvshalom Yotam of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(James P. Sullivan, J.), rendered August 6, 2014, convicting him of course of sexualconduct against a child in the first degree (two counts) and endangering the welfare of achild (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court erred in admitting certainphotographs into evidence is unpreserved for appellate review and, in any event, withoutmerit (see People v Khan,88 AD3d 1014, 1015 [2011]; People v Sampson, 67 AD3d 1031, 1032 [2009]).
Contrary to the defendant's contention, he was not deprived of a fair trial by theadmission of "prompt outcry" evidence without a limiting instruction, as the SupremeCourt, during the final jury charge, instructed the jury regarding the proper use of suchevidence (see People vBernardez, 85 AD3d 936, 938 [2011]).
During the testimony of the guardian of one of the complainants, the Supreme Courtadmitted into evidence the recording of a 911 call made by the guardian shortly after sheobserved the defendant in a bedroom with the complainant. Contrary to the defendant'scontention, the recording of the 911 call was properly admitted into evidence (seePeople v Buie, 86 NY2d 501, 508-509 [1995]; People v Thompson, 132 AD3d 1364, 1365 [2015]).
The defendant's challenge to the admission of hearsay testimony of certain policeofficers regarding the nature of the complaint they received is unpreserved for appellatereview and, in any event, without merit (see People v Singletary, 270 AD2d 903[2000]; People v Ayala, 247 AD2d 204 [1998]).
The defendant's challenge to the admission of testimony regarding the emotionalcondition of one of the complainants and his guardian is unpreserved for appellatereview and, in any event, without merit, as the testimony was both relevant (seePeople v Gebert, 118 AD2d 799, 801 [1986]) and not unduly cumulative orduplicative (see People v Keane, 262 AD2d 658, 659 [1999]).
[*2] During the testimony of one of the prosecution's expertwitnesses, the expert was permitted to refer to various entries from the medical records ofone of the complainants, which entries reflected certain factual information conveyed bythe complainant to medical personnel. The defendant's trial counsel objected only once,when the witness appeared to be reading directly from the records. The objection wassustained on that ground, and trial counsel requested no further relief. Under thecircumstances, the defendant's contentions with respect to the expert's testimony areunpreserved for appellate review. In any event, since the complainant himself had alreadytestified as to the underlying facts, the information contained in the entries was merelycumulative and cannot be said to have deprived the defendant of a fair trial (cf. People v Sylar, 21 AD3d1397 [2005]).
The defendant's challenge to certain remarks made by the prosecutor duringsummation is largely unpreserved for appellate review (see People v Murphy, 133AD3d 690, 690-691 [2015]; People v Joubert, 125 AD3d 686 [2015]). In any event,most of the remarks were either fair comment on the evidence, fair response to thedefendant's summation, or permissible rhetorical comment (see People v Withfield, 106AD3d 760, 761 [2013]; People v Boyce, 54 AD3d 1052, 1053 [2008]; People v Tucker, 27 AD3d592 [2006]; People v Russo, 201 AD2d 512 [1994], affd 85 NY2d872 [1995]). Although some of the prosecutor's remarks were improper, those remarkswere not so flagrant or pervasive as to deny the defendant a fair trial (see People v Lopez, 150 AD3d1266, 1267 [2017]; Peoplev Jackson, 150 AD3d 1025 [2017]), and to the extent that any prejudicial effectmay have resulted from any of the challenged remarks, it was ameliorated by theSupreme Court's instructions (see People v Murphy, 133 AD3d at 691; Peoplev Joubert, 125 AD3d at 686).
Contrary to the defendant's contention, his trial counsel's failure to preserve certainclaims for appellate review did not constitute ineffective assistance of counsel (see People v Foster, 153 AD3d853, 855 [2017]; People vBedford, 95 AD3d 1226, 1227 [2012]; People v Erskine, 90 AD3d 674, 675 [2011]). Mastro, J.P.,Chambers, Sgroi and Maltese, JJ., concur.