| People v Mandes |
| 2019 NY Slip Op 00145 [168 AD3d 764] |
| January 9, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jose Mandes, Appellant. |
Paul Skip Laisure, New York, NY (Nao Terai of counsel), for appellant, and appellant prose.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, JoyceAdolfsen, and Gamaliel Marrero of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sheryl L.Parker, J.), rendered June 13, 2013, convicting him of course of sexual conduct against a child inthe second degree (two counts), sexual abuse in the third degree, and endangering the welfare ofa child (three counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence, raised in his main brief, isunpreserved 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 defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury'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 contends in his main brief that certain testimony from the sister, the mother,and the father of the victims regarding the circumstances surrounding one of the victim's outcryand the events leading to the criminal investigation, as well as testimony from a detectiveregarding the defendant's arrest, constituted improper bolstering. This contention is only partiallypreserved for appellate review (see CPL 470.05 [2]). In any event, the defendant'scontention is without merit. The challenged testimony elicited from the sister was properlyadmitted under the prompt outcry exception to the rule against hearsay (see People vMcDaniel, 81 NY2d 10, 17 [1993]; People v Evangelista, 155 AD3d 972, 972-973 [2017]; People v Caban, 126 AD3d 808,808-809 [2015]), and the challenged testimony from the mother, the father, and the arrestingdetective was properly admitted for the purpose of completing the narrative and explaining theinvestigation (see People v Ludwig,24 NY3d 221, 231 [2014]; People vMehmood, 112 AD3d 850 [2013]; People v Rosario, 100 AD3d 660, 661 [2012]; People v Ragsdale, 68 AD3d 897,897-898 [2009]).
The defendant's contention in his main brief that the Supreme Court erred in admitting intoevidence photographs of the victims is unpreserved for appellate review (see CPL 470.05[2]; People v Texidor, 123 AD3d746, 746 [2014]) and, in any event, without merit. The court providently exercised itsdiscretion in admitting into evidence photographs depicting the victims at ages 8 and 11,respectively, when the sexual abuse was alleged to have occurred, in order to illustrate eachvictim's age and appearance, and to corroborate expert testimony regarding the "imbalance ofpower" which existed between the defendant and the victims (see People v Stevens, 76NY2d 833, 835 [1990]; People vMatthews, 142 AD3d 1354 [2016]; People v Khan, 88 AD3d 1014, 1015 [2011]).
The defendant contends in his pro se supplemental brief that his statutory and constitutionalrights to a speedy trial were violated. Since the defendant never made a pretrial motion to dismissthe indictment on the ground that he was denied his statutory right to a speedy trial, he waivedhis right to dismissal on statutory speedy trial grounds (see CPL 210.20 [1]; People vLawrence, 64 NY2d 200, 203-204 [1984]; People v Card, 107 AD3d 820 [2013]). Furthermore, insofar as theissue is raised for the first time on appeal, the defendant's contention that his constitutionalspeedy trial rights were violated is unpreserved for appellate review (see People v Jordan,62 NY2d 825, 826 [1984]; People vCard, 107 AD3d 820 [2013]). In any event, upon review of the record, we find that thedefendant was not denied his constitutional right to a speedy trial (see People vTaranovich, 37 NY2d 442 [1975]; People v Metellus, 157 AD3d 821 [2018]).
The defendant was not deprived of the effective assistance of counsel. Viewing the record inits totality, the defendant was provided with meaningful representation (see People vBenevento, 91 NY2d 708 [1998]). While the defendant contends that his trial counsel wasineffective for failing to move to dismiss the indictment on statutory speedy trial grounds, theargument cannot be fairly characterized as clear-cut and dispositive in the defendant's favor (see People v McGee, 20 NY3d513, 518 [2013]), so as to render defense counsel ineffective for failing to make such amotion.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Chambers, J.P., Austin, Roman and Iannacci, JJ., concur.