People v. Keller Valencia-Noralez

127 A.D.3d 1113, 6 N.Y.S.3d 668

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 22, 2015
• Docket: 2011-11041
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.), rendered October 28, 2011, convicting him of sexual abuse in the first degree, 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 unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), 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 NY3d 342 [2007]), 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 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). 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 NY3d 633 [2006]).

The defendant contends that the admission into evidence of a photograph taken after his arrest was improper. However, the defendant has failed to preserve this contention for appellate review, as no objection was made to the admission of the photograph (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19-21 [1995]; People v Fray, 258 AD2d 529, 529-530 [1999]). In any event, the photograph was properly admitted into evidence, as it was relevant under the circumstances and did not prejudice the defendant (see People v Logan, 25 NY2d 184, 195-196 [1969]; People v Hicks, 84 AD3d 1402, 1403 [2011]).

The defendant also failed to preserve for appellate review his contention that the County Court improperly permitted a sexual assault nurse examiner to testify that her observations of the complainant’s injuries were consistent with injuries that could be caused by fingernails similar to those of the defendant (see CPL 470.05 [2]; People v Gray, 86 NY2d at 19-21). In any event, the testimony did not, as the defendant urges, improp erly bolster the complainant’s credibility or impinge upon the jury’s right to determine his guilt (see People v Ocampo, 52 AD3d 741, 742 [2008]; People v Rogers, 8 AD3d 888, 892 [2004]; People v Harris, 249 AD2d 775 [1998]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

Eng, P.J., Austin, Cohen and Barros, JJ., concur.