People v. Resto

Appellate Division of the Supreme Court of New York

People v. Resto

104 A.D.3d 709, 960 N.Y.S.2d 203

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 6, 2013

StatusPublished

This text of 104 A.D.3d 709 (People v. Resto) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Resto, 104 A.D.3d 709, 960 N.Y.S.2d 203 (N.Y. Ct. App. 2013).

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Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.), rendered July 14, 2009, convicting him of criminal sexual act in the third degree (two counts) and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the trial court providently exercised its discretion in denying his request for a missing witness charge as to the victim’s mother, as the defendant did not show that the mother would have provided noncumulative testimony that was favorable to the prosecution (see People v Savinon, 100 NY2d 192, 196-197 [2003]; People v Stewart, 96 AD3d 880, 881 [2012]).

Additionally, the trial court providently exercised its discretion in precluding the defendant from cross-examining the victim about a past allegation of sexual abuse because the defendant provided no basis for his contention that the prior allegation was false (see People v Mandel, 48 NY2d 952 [1979], cert denied 446 US 949 [1980]; People v Benn, 213 AD2d 489 [1995]). Moreover, the defendant was properly prohibited from inquiring [710]*710into the victim’s past sexual history under the rape shield statute (see CPL 60.42; People v Williams, 81 NY2d 303, 313-314 [1993]; People v Rendon, 301 AD2d 665, 666 [2003]; People v Baldwin, 211 AD2d 638 [1995]).

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], cert denied 542 US 946 [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]). Rivera, J.R, Chambers, Hall and Miller, JJ., concur.

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Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.), rendered July 14, 2009, convicting him of criminal sexual act in the third degree (two counts) and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the trial court providently exercised its discretion in denying his request for a missing witness charge as to the victim’s mother, as the defendant did not show that the mother would have provided noncumulative testimony that was favorable to the prosecution (see People v Savinon, 100 NY2d 192, 196-197 [2003]; People v Stewart, 96 AD3d 880, 881 [2012]).

Additionally, the trial court providently exercised its discretion in precluding the defendant from cross-examining the victim about a past allegation of sexual abuse because the defendant provided no basis for his contention that the prior allegation was false (see People v Mandel, 48 NY2d 952 [1979], cert denied 446 US 949 [1980]; People v Benn, 213 AD2d 489 [1995]). Moreover, the defendant was properly prohibited from inquiring [710]*710into the victim’s past sexual history under the rape shield statute (see CPL 60.42; People v Williams, 81 NY2d 303, 313-314 [1993]; People v Rendon, 301 AD2d 665, 666 [2003]; People v Baldwin, 211 AD2d 638 [1995]).

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], cert denied 542 US 946 [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]). Rivera, J.R, Chambers, Hall and Miller, JJ., concur.

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104 A.D.3d 709, 960 N.Y.S.2d 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-resto-nyappdiv-2013.

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