Opinion
No. 2011–1055KCR.
2014-07-24
The PEOPLE of the State of New York, Respondent, v. Cesar VELOSO, Appellant.
Present: PESCE, P.J., SOLOMON and ELLIOT, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Ruth E. Smith, J.), rendered March 11, 2011. The judgment convicted defendant, after a nonjury trial, of one count of forcible touching and three counts of sexual abuse in the third degree.
ORDERED that the judgment of conviction is affirmed.
Defendant was initially charged with two counts of sexual abuse in the third degree (Penal Law § 130.55), two counts of sexual abuse in the second degree (Penal Law § 130.60[1] ) and two counts of endangering the welfare of a child (Penal Law § 260.10[1] ), in an accusatory instrument wherein two male children were named as victims. Thereafter, in a superseding information, charges were added which, among other things, included one count of forcible touching (Penal Law § 130.52) and three counts of sexual abuse in the third degree with respect to a newly named male victim. After a nonjury trial, defendant was convicted of one count of forcible touching and three counts of sexual abuse in the third degree, only with respect to the newly named victim. On appeal, defendant contends, among other things, that the People were not permitted to file a superseding information charging new offenses based upon new facts that relate to a victim who was only first named in the superseding information.
CPL 100.50(1) authorizes the filing of a superseding information prior to “entry of a plea of guilty to or commencement of a trial of an information,” which may charge a new crime. Thus, the “statute necessarily implies that new facts may be alleged in support of any additional offenses” that are joinable crimes ( People v. Thomas, 4 NY3d 143, 147–148 [2005]; see CPL 200.20[2] [b]; 100.45; People v. Shoga, 89 AD3d 1225 [2011] ). We find that the new offenses—charging defendant with one count of forcible touching and three counts of sexual abuse in the third degree relating to the new victim named in the superseding information—were properly joined, in that proof of the initial charges would be material and admissible as evidence in chief upon a trial of the new charges ( see CPL 200.20[2][b]; People v. Griffin, 132 A.D.2d 569 [1987] ).
In determining whether the evidence was legally sufficient, an appellate court must view the facts in a light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620 [1983] ). A verdict is legally sufficient where there is a valid line of reasoning and permissible inferences from which a rational trier of fact could have determined that the elements of the offense were proven beyond a reasonable doubt ( People v. Danielson, 9 NY3d 342, 349 [2007] ). Applying that standard here, we are of the opinion that a rational trier of fact could have found that defendant's guilt of one count of forcible touching and three counts of sexual abuse in the third degree was proven beyond a reasonable doubt. Furthermore, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; Danielson, 9 NY3d at 348–349), and according appropriate deference to the trial court's credibility determinations, based upon its particular opportunity to view the witnesses, hear their testimony, and observe their demeanor ( see People v. Mateo, 2 NY3d 383, 410 [2004]; People v. Bleakley, 69 N.Y.2d 490, 495 [1987] ), we are satisfied that the verdict was not against the weight of the evidence ( see People v. Romero, 7 NY3d 633 [2006] ).
Defendant's remaining contentions are either unpreserved for appellate review or lack merit.
Accordingly, the judgment of conviction is affirmed.