PEOPLE v. SULAYAO (2009)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered November 22, 2004, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's generalized motion to dismiss made at the conclusion of the People's case failed to preserve his challenge to the legal sufficiency of the evidence (see People v. Hawkins, 11 N.Y.3d 484;  CPL 470.05[2] ).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Cox, 21 A.D.3d 1361, 1362, 802 N.Y.S.2d 813;  People v. Bodenburg, 7 A.D.3d 534, 535, 775 N.Y.S.2d 595).

 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 N.Y.3d 342, 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, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  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 was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Bodenburg, 7 A.D.3d at 535, 775 N.Y.S.2d 595;  People v. Rosario, 6 A.D.3d 175, 773 N.Y.S.2d 875).

 Contrary to the defendant's contention, the trial court providently exercised its discretion in permitting a Powerpoint presentation on the mechanics and injuries associated with shaken baby syndrome, as the probative value of the presentation outweighed its prejudicial effect (see People v. Yates, 290 A.D.2d 888, 889-890, 736 N.Y.S.2d 798;  see generally People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728;  People v. Acevedo, 40 N.Y.2d 701, 704, 389 N.Y.S.2d 811, 358 N.E.2d 495).   Moreover, any resultant prejudice was minimized by the court's limiting instructions to the jury (see People v. Yates, 290 A.D.2d at 890, 736 N.Y.S.2d 798).   Likewise, the trial court providently exercised its discretion in allowing an expert witness to shake a doll in order to demonstrate the force necessary to inflict shaken baby syndrome (see People v. Kendall, 254 A.D.2d 809, 810, 678 N.Y.S.2d 182).

 While some of the People's rebuttal testimony was cumulative of what they had already presented on their direct case and should have been excluded from evidence (see People v. Kendall, 255 A.D.2d 601, 680 N.Y.S.2d 874;  People v. Alston, 158 A.D.2d 607, 551 N.Y.S.2d 579), any error was harmless as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to his conviction (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Kendall, 255 A.D.2d at 601, 680 N.Y.S.2d 874;  People v. Barber, 175 A.D.2d 560, 572 N.Y.S.2d 225).

The defendant's remaining contentions are without merit.