PEOPLE v. RODRIGUEZ (2009)

Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered March 21, 2007, convicting defendant, after a jury trial, of course of sexual conduct against a child in the first degree, and sentencing him to a term of 20 years, unanimously affirmed.

 The verdict 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] ).   There is no basis for disturbing the jury's determinations concerning credibility.   The child victim's inability to remember certain details, and her delay in reporting the pattern of abuse, were satisfactorily explained.

 The trial court properly denied defendant's request for a missing witness charge regarding the child's older brother, since defendant did not demonstrate that he could have provided any material noncumulative information (see People v. Ortiz, 44 A.D.3d 364, 844 N.Y.S.2d 7 [2007], lv. denied 9 N.Y.3d 1008, 850 N.Y.S.2d 396, 880 N.E.2d 882 [2007] ).   The child testified that her brother was not present when defendant abused her, and the record indicates that he could have testified, at most, about insignificant matters such as defendant and the victim's unremarkable movements within the apartment.

The court's instructions were sufficient to prevent defendant from being prejudiced by those portions of the prosecutor's summation that allegedly shifted the burden of proof (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981];  see also People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ), and a mistrial was not warranted.