PEOPLE v. URENA (2024)

Judgment, Supreme Court, Bronx County (Alvin M. Yearwood, J.), rendered May 8, 2018, as amended May 9, 2018, convicting defendant, after a jury trial, of predatory sexual assault against a child, rape in the first degree, incest in the first degree, sexual abuse in the second degree (two counts) and endangering the welfare of a child, and sentencing him to an aggregate term of 15 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the rape in the first degree conviction, dismissing that count, and otherwise affirmed.

Defendant's legal insufficiency claim is unpreserved, and we decline to review it in the interest of justice.  At trial, defendant made only a generalized motion to dismiss on the ground that the People had failed to put forward a legally sufficient case and did not move on the specific grounds he raises on appeal (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19–20, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995];  People v. Jones, 39 A.D.3d 312, 834 N.Y.S.2d 522 [1st Dept. 2007], lv denied 9 N.Y.3d 846, 840 N.Y.S.2d 772, 872 N.E.2d 885 [2007]).  As an alternative holding, we reject this claim on the merits.  The jury verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];  see also People v. Baque, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2024 N.Y. Slip Op. 05244 [2024]).  The jury could reasonably have credited the victim's testimony, in which she testified that shortly before her 11th birthday, defendant, who is also the victim's father, engaged in vaginal sexual contact with her (see People v. Medlin, 144 A.D.3d 426, 426, 40 N.Y.S.3d 395 [1st Dept. 2016], lv denied 29 N.Y.3d 999, 57 N.Y.S.3d 721, 80 N.E.3d 414 [2017];  see also People v. Griffin, 111 A.D.3d 1355, 1357, 974 N.Y.S.2d 730 [4th Dept. 2013], lv. denied 22 N.Y.3d 139, 983 N.Y.S.2d 497, 6 N.E.3d 616 [2014]).  There is no basis for disturbing the jury's credibility determinations.

Defendant's contention that certain counts of which he was convicted were multiplicitous is unpreserved for our review.  Nevertheless, even when a multiplicitous conviction does not increase the defendant's sentence, “the stigma of impermissible convictions endures and must be remedied” (People v. Greene, 41 N.Y.3d 950, 951, 207 N.Y.S.3d 467, 231 N.E.3d 413 [2024]).  For this reason we exercise our discretion in the interest of justice to vacate the conviction of rape in the first degree and dismiss that count of the indictment, as multiplicitous to the count of incest in the first degree (see People v. Jean, 117 A.D.3d 875, 877–878, 985 N.Y.S.2d 669 [2d Dept. 2014], lv denied 24 N.Y.3d 961, 996 N.Y.S.2d 221, 20 N.E.3d 1001 [2014]).

Defendant's claim that the court erred in admitting the testimony of the victim's mother as a prompt outcry witness is unpreserved.  The objection before the court was largely to the perceived inconsistency between the victim's testimony that she told the mother that defendant was touching her inappropriately, and the allegations in the indictment, which involved substantially more sexual contact.  Defendant's claim at trial was substantially different from the issue he raises for the first time on appeal, i.e., that the mother denied that the victim made a prompt outcry to her (see People v. Darby, 196 A.D.3d 643, 644–645, 148 N.Y.S.3d 380 [2d Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 419, 175 N.E.3d 445 [2021];  CPL 470.05[2]).  On the merits, we find that the victim's outcry was prompt, given her young age at the time and that the abuse was ongoing at the time of her disclosure (see People v. Stuckey, 50 A.D.3d 447, 448, 855 N.Y.S.2d 141 [1st Dept. 2008], lv denied 11 N.Y.3d 742, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008];  People v. Chin, 205 A.D.3d 819, 820, 165 N.Y.S.3d 890 [2d Dept. 2022], lv denied 38 N.Y.3d 1070, 171 N.Y.S.3d 465, 191 N.E.3d 417 [2022]).

By failing to object, or by making general objections, defendant failed to preserve any of his challenges to the prosecutor's violation of CPL 60.35 during the mother's trial testimony (see People v. Evans, 287 A.D.2d 346, 731 N.Y.S.2d 380 [1st Dept. 2001], lv denied 97 N.Y.2d 704, 739 N.Y.S.2d 104, 765 N.E.2d 307 [2002];  see also People v. Upson, 186 A.D.3d 1270, 1271, 127 N.Y.S.3d 884 [2d Dept. 2020], lv denied 36 N.Y.3d 1054, 140 N.Y.S.3d 871, 164 N.E.3d 958 [2021]).  We decline to review these arguments in the interest of justice.  As an alternate holding, we find that the violation of CPL 60.35 – the People's use of prior statements by the mother to impeach her testimony and refresh her recollection in a manner that disclosed the contents of the statements to the jury – was harmless.  In light of the overwhelming evidence of defendant's guilt, including the victim's testimony, the prompt outcry testimony of the victim's guidance counselor, the note and drawings prepared by the victim during her meeting with the guidance counselor, and the medical evidence, there is no significant probability that the jury would have acquitted the defendant had the CPL 60.35 violation not occurred (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975];  see also People v. Saez, 69 N.Y.2d 802, 804, 513 N.Y.S.2d 380, 505 N.E.2d 945 [1987];  People v. Wiggins, 170 A.D.3d 1204, 1205–1206, 97 N.Y.S.3d 144 [2d Dept. 2019], lv denied 34 N.Y.3d 939, 109 N.Y.S.3d 737, 133 N.E.3d 442 [2019];  People v. Jones, 97 A.D.3d 696, 697, 948 N.Y.S.2d 385 [2d Dept. 2012], lv denied 19 N.Y.3d 1027, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012];  People v. Matusak, 206 A.D.2d 903, 903, 615 N.Y.S.2d 165 [4th Dept. 1994], lv denied 84 N.Y.2d 908, 621 N.Y.S.2d 526, 645 N.E.2d 1226 [1994]).  Nor do we find any merit in defendant's claim that the prosecutor put the victim's mother on the stand knowing that she would deny having made or heard certain statements.  Insofar as defendant asserts objections to statements made by the prosecutor in summation, defendant's counsel made only general objections and did not request further relief.  Thus, his claim is unpreserved (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006];  People v. Carey, 194 A.D.3d 553, 554, 143 N.Y.S.3d 883 [1st Dept. 2021], lv denied 37 N.Y.3d 971, 150 N.Y.S.3d 688, 172 N.E.3d 801 [2021]).  On the merits, we find the prosecutor's comments to be generally responsive to counsel's summation (People v. Marten, 227 A.D.3d 554, 554–555, 211 N.Y.S.3d 340 [1st Dept. 2024]).  Ultimately, none of the prosecutor's remarks were so egregious as to require reversal (see People v. D'Alessandro, 184 A.D.2d 114, 119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993]).

Defendant's ineffective assistance claim related to counsel's purported decision not to call expert witnesses to counter the People's expert witnesses during the trial is unreviewable on direct appeal (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988]).  Although defendant made a CPL 440.10 motion, it was denied, and defendant did not seek leave to appeal to this Court.  Accordingly, the merits of this claim may not be addressed on direct appeal (see People v. Murray, 175 A.D.3d 1191, 1191–1192, 109 N.Y.S.3d 271 [1st Dept. 2019], lv denied 34 N.Y.3d 1018, 114 N.Y.S.3d 768, 138 N.E.3d 497 [2019]).  In the alternative, to the extent the record permits review, we find that counsel was not ineffective (see People v. Rodriguez, 159 A.D.3d 631, 632, 73 N.Y.S.3d 555 [1st Dept. 2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764 [2018]);  see also People v. Nicholson, 26 N.Y.3d 813, 832, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016]).

We have considered defendant's remaining arguments and find them unavailing.