Opinion
2009-04687, Ind. No. 106/08.
04-15-2015
The PEOPLE, etc., respondent, v. Rodolfo HERNANDEZ, appellant.
Lynn W.L. Fahey, New York, N.Y. (Anna Pervukhin and Lisa Napoli of counsel), for appellant. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Anna Pervukhin and Lisa Napoli of counsel), for appellant.
Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered May 1, 2009, convicting him of sexual abuse in the first degree and endangering the welfare of a child, 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 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 ). Contrary to the defendant's contention, the child's out-of-court-communications, as testified to by her parents, were not erroneously admitted into evidence under the excited utterance exception to the hearsay rule. The surrounding circumstances reasonably justify the conclusion that the child's communications were not made under the impetus of studied reflection (see People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229 ; People v. Whitlock, 95 A.D.3d 909, 910, 943 N.Y.S.2d 227 ; People v. Clemente, 84 A.D.3d 829, 830, 922 N.Y.S.2d 193 ). Further, because the communications were nontestimonial in nature, the admission of this evidence did not violate the defendant's right to confront a witness against him (see People v. Clemente, 84 A.D.3d at 830, 922 N.Y.S.2d 193 ; People v. Legere, 81 A.D.3d 746, 750, 916 N.Y.S.2d 187 ; People v. Melendez, 71 A.D.3d 1166, 1167, 898 N.Y.S.2d 224 ).
The defendant's challenge to certain testimony of the People's medical expert is unpreserved for appellate review (see People v. Arroyo, 59 A.D.3d 634, 634, 872 N.Y.S.2d 674 ; People v. Clas, 54 A.D.3d 770, 770, 863 N.Y.S.2d 493 ), and, in any event, is without merit (see generally People v. Rivers, 18 N.Y.3d 222, 228, 936 N.Y.S.2d 650, 960 N.E.2d 419 ).
Viewed in their totality, the circumstances reveal that the defendant was not deprived of the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
The defendant's remaining contention is without merit.