| People v Garcia |
| 2021 NY Slip Op 05980 [199 AD3d 701] |
| November 3, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ovidio A. Rosales Garcia, Appellant. |
Joseph A. Hanshe, Sayville, NY (Alia F. Richards of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Elena Tomaro and Marion Tang ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (BarbaraKahn, J.), rendered March 6, 2018, convicting him of rape in the second degree (two counts) andendangering the welfare of a child, upon a jury verdict, and imposing sentence. The appeal bringsup for review the denial, after a hearing, of that branch of the defendant's omnibus motion whichwas to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
The County Court properly denied that branch of the defendant's omnibus motion which wasto suppress his oral and written statements to law enforcement officials. The record establishesthat the defendant knowingly, voluntarily, and intelligently waived his rights under Miranda vArizona (384 US 436 [1966]) prior to making his statements (see People v Torres, 177 AD3d579 [2019]; People v Capela,97 AD3d 760, 761 [2012]). The evidence presented at the suppression hearing demonstratedthat a detective read the Miranda rights in Spanish for the Spanish-speaking defendant,who confirmed that he understood the rights read to him (see People v Alvarenga, 190 AD3d 762 [2021]; People v Zelaya, 170 AD3d 1206[2019]). Further, while the defendant's written statement was transcribed into English by theinterviewing detective, that statement was not thereby rendered inadmissible because thedetective read it back to the defendant in Spanish before the defendant signed and adopted thestatement as his own (see People v Torres, 177 AD3d at 579; People v Mora, 57 AD3d 571[2008]; People v Fabricio, 307 AD2d 882, 883 [2003], affd 3 NY3d 402[2004]).
The defendant's contention that the County Court improvidently exercised its discretion inpermitting the testimony of the People's expert witness on the subject of child sexual abuse isunpreserved for appellate review (see CPL 470.05 [2]). In any event, the expert'stestimony was properly admitted to explain the issue of delayed disclosure in child victims ofsexual abuse (see People vNicholson, 26 NY3d 813, 828-829 [2016]; People v Shane, 187 AD3d 1219, 1220 [2020]; People v Tebout, 179 AD3d 1099,1101 [2020]). Contrary to the defendant's contention, the expert's testimony neither bolstered norvouched for the complainant's credibility, as the expert spoke in general terms and did notsuggest that the charged crimes occurred (see People v Diaz, 20 NY3d 569, 575-576 [2013]; People v Galvez, 188 AD3d 1251,1252 [2020]; People v Shane, 187 AD3d at 1220).
[*2] Contrary to the defendant's contention, the County Courtproperly denied his request to submit attempted rape in the second degree to the jury as a lesserincluded offense of rape in the second degree. "To establish a charge on a lesser included offense,a defendant must show both that the greater crime cannot be committed without havingconcomitantly committed the lesser by the same conduct, and that a reasonable view of theevidence supports a finding that he or she committed the lesser, but not the greater, offense" (People v James, 11 NY3d 886,888 [2008]; see People v Cook, 193AD3d 760, 760 [2021]). Here, the defendant established the first prong. However, viewingthe record in the light most favorable to the defendant (see People v Martin, 59 NY2d704, 705 [1983]; People v Ranot,194 AD3d 967, 968 [2021]), there was no reasonable view of the evidence to support afinding that the defendant committed the lesser offense but not the greater offense (see Peoplev Ranot, 194 AD3d at 968; People v Coley, 266 AD2d 307, 307 [1999]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish, beyonda reasonable doubt, the defendant's guilt of both counts of rape in the second degree. Moreover,in fulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).LaSalle, P.J., Austin, Wooten and Zayas, JJ., concur.