Opinion
2014-07-16
The PEOPLE, etc., respondent, v. Brian W. WILEY, appellant.
Frederick K. Brewington, Hempstead, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Laurie K. Gibbons of counsel), for respondent.
Frederick K. Brewington, Hempstead, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Laurie K. Gibbons of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Kase, J.), rendered December 17, 2012, convicting him of sexual abuse in the first degree, forcible touching, and assault in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
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 of sexual abuse in the first degree (Penal Law § 130.65[1] ), forcible touching (Penal Law § 130.52), and assault in the third degree (Penal Law § 120.00[1] ) beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 348, 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 as to those crimes was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902). Contrary to the defendant's arguments, there was sufficient circumstantial evidence from which a reasonable jury could infer that the defendant subjected the complainant to sexual contact ( seePenal Law § 130.00[3]; cf. People v. McDade, 14 N.Y.3d 760, 761, 899 N.Y.S.2d 749, 925 N.E.2d 92) and additionally caused physical injury ( seePenal Law § 10.00[9] ). Furthermore, the element of sexual gratification could be inferred from the circumstances and the defendant's conduct ( see People v. Hill, 34 A.D.3d 1130, 1131, 824 N.Y.S.2d 802;People v. Ortiz, 16 A.D.3d 831, 833, 791 N.Y.S.2d 709).
The Supreme Court properly denied the defendant's request to charge the jury with respect to the defense of justification under the emergency doctrine since, viewing the evidence in the light most favorable to the defendant, there was no reasonable view of the evidence supporting the elements of the defense ( seePenal Law § 35.05[2]; People v. Rodriguez, 16 N.Y.3d 341, 345, 921 N.Y.S.2d 628, 946 N.E.2d 726;People v. Craig, 78 N.Y.2d 616, 623, 578 N.Y.S.2d 471, 585 N.E.2d 783;People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188).
The defendant's contention that he was denied a fair trial by certain remarks made by the prosecutor during summation is partially unpreserved for appellate review, as he failed to object to many of the remarks about which he now complains ( seeCPL 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. Douglas, 64 A.D.3d 726, 727, 881 N.Y.S.2d 903). In any event, most of the challenged remarks were within the broad bounds of rhetorical comment permissible in closing arguments, fair comment on the evidence, or responsive to arguments and theories presented in the defense summation ( see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885;People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564;People v. Turner, 214 A.D.2d 594, 625 N.Y.S.2d 233). To the extent that some of the prosecutor's remarks were improper, the defendant was not deprived of a fair trial by those remarks. Any other error in this regard was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to the defendant's convictions ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
The defendant's remaining contention is without merit. DILLON, J.P., HALL, MILLER and HINDS–RADIX, JJ., concur.