Opinion
2014–04764 Ind. No. 10124/11
03-02-2022
The PEOPLE, etc., respondent, v. Jean TOUSSAINT, appellant.
Patricia Pazner, New York, NY (Kathleen Whooley of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, and Sullivan & Cromwell, LLP [Jessica R. Ecker ], of counsel), for respondent.
Patricia Pazner, New York, NY (Kathleen Whooley of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, and Sullivan & Cromwell, LLP [Jessica R. Ecker ], of counsel), for respondent.
MARK C. DILLON, J.P., VALERIE BRATHWAITE NELSON, REINALDO E. RIVERA, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Suzanne M. Mondo, J.), rendered March 4, 2014, convicting him of use of a child in a sexual performance (three counts), disseminating indecent material to minors in the first degree, attempted rape in the third degree, sexual abuse in the third degree, and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
In November 2011, the defendant, inter alia, took nude photographs of the then 16–year–old complainant and attempted to rape her. After a jury trial, the defendant was convicted of use of a child in a sexual performance (three counts), disseminating indecent material to minors in the first degree, attempted rape in the third degree, sexual abuse in the third degree, and endangering the welfare of a child (two counts).
Contrary to the defendant's contention, with regard to his convictions of use of a child in a sexual performance, he did not establish, by a preponderance of the evidence, the affirmative defense that he had a good faith reasonable belief that the complainant was 17 years of age or over (see Penal Law § 263.20[1] ; People v. Bhattacharjee, 51 A.D.3d 684, 685, 857 N.Y.S.2d 499 ). The defendant's challenge to the legal sufficiency of the evidence underlying his convictions of attempted rape in the third degree, sexual abuse in the third degree, and endangering the welfare of a child is unpreserved 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, 621, 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 with respect to these counts. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence, we are satisfied that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ).
The defendant's contention that he was deprived of a fair trial by certain comments made by the prosecutor during summation is unpreserved for appellate review (see CPL 470.05[2] ), and, in any event, without merit (see People v. Kiarie, 198 A.D.3d 814, 815, 155 N.Y.S.3d 212 ; People v. Molina, 188 A.D.3d 920, 922, 133 N.Y.S.3d 618 ). Furthermore, defense counsel's failure to object to certain summation comments did not constitute ineffective assistance of counsel (see People v. Hughes, 199 A.D.3d 937, 154 N.Y.S.3d 453 ).
DILLON, J.P., BRATHWAITE NELSON, RIVERA and WOOTEN, JJ., concur.