Opinion
11-02-2016
The PEOPLE, etc., respondent, v. Trevor A. COLE, appellant.
Gary E. Eisenberg, New City, N.Y., for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Nicholas D. Mangold of counsel), for respondent.
Gary E. Eisenberg, New City, N.Y., for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Nicholas D. Mangold of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered October 23, 2013, convicting him of rape in the third degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.The defendant's challenge to the legal sufficiency of the evidence is not preserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's challenges to the prosecutor's remarks during summation are largely unpreserved for appellate review (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Maitland, 136 A.D.3d 1058, 1058–1059, 26 N.Y.S.3d 190 ). In any event, most of those remarks were fair comment on the evidence or permissible rhetorical comment, and to the extent that some remarks were improper, they did not rise to the level of egregious misconduct that would have deprived the defendant of a fair trial (see People v. Maitland, 136 A.D.3d at 1058, 26 N.Y.S.3d 190; People v. Mason, 132 A.D.3d 777, 778, 17 N.Y.S.3d 768 ; People v. Wallace, 123 A.D.3d 1151, 1152, 997 N.Y.S.2d 756 ).
The defendant's challenge to the length of the term of imprisonment imposed on the ground that it is excessive has been rendered academic because the maximum term has expired (see People v. Gonzalez, 113 A.D.3d 792, 793, 978 N.Y.S.2d 870 ; People v. Verdejo, 112 A.D.3d 761, 976 N.Y.S.2d 407 ; People v. Hernandez, 108 A.D.3d 640, 641, 968 N.Y.S.2d 384 ; People v. Nicholson, 31 A.D.3d 468, 469, 817 N.Y.S.2d 638 ; People v. Anderson, 168 A.D.2d 624, 624, 563 N.Y.S.2d 463 ), and he does not challenge the period of postrelease supervision imposed.
LEVENTHAL, J.P., MALTESE, LaSALLE and BRATHWAITE NELSON, JJ., concur.