PEOPLE v. MENENDEZ (2008)

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered July 25, 2006, convicting him of murder in the first degree (two counts), rape in the first degree, and criminal sexual act in the first degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements made to law enforcement officials.

ORDERED that the judgment is affirmed.

Since the statements the defendant made to law enforcement officials were not introduced at trial, his contention that they were made without the benefit of Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) is academic for purposes of this appeal (see People v. Nevins, 16 A.D.3d 1046, 1048, 791 N.Y.S.2d 771;  People v. Vanier, 178 A.D.2d 501, 577 N.Y.S.2d 143;  People v. Adames, 168 A.D.2d 623, 563 N.Y.S.2d 462).

The trial court's preliminary instructions, as a whole, were accurate as to the burden of proof (see People v. Fields, 87 N.Y.2d 821, 823, 637 N.Y.S.2d 355, 660 N.E.2d 1134;  People v. Belk, 238 A.D.2d 346, 656 N.Y.S.2d 924;  People v. Rodriguez, 155 A.D.2d 627, 547 N.Y.S.2d 677, affd. 76 N.Y.2d 918, 563 N.Y.S.2d 48, 564 N.E.2d 658).   Moreover, in the single instance where the preliminary instruction was inaccurate, the defendant declined the issuance of curative instructions (see People v. Young, 48 N.Y.2d 995, 996, 425 N.Y.S.2d 546, 401 N.E.2d 904;  People v. Simmons, 204 A.D.2d 214, 215, 612 N.Y.S.2d 136).

 The defendant contends that testimony of a sexual assault nurse examiner should have been precluded because she was unqualified to render an expert opinion and her testimony shifted the burden of proof and was speculative.   However, only the defendant's challenge to her testimony as speculative is preserved for appellate review.   In any event, the defendant's contentions are without merit.   Given the education and employment history of the witness, who was a registered nurse, the trial court providently exercised its discretion in permitting her to provide expert testimony (see Matott v. Ward, 48 N.Y.2d 455, 459, 423 N.Y.S.2d 645, 399 N.E.2d 532;  People v. Lewis, 16 A.D.3d 173, 790 N.Y.S.2d 132;  People v. Morehouse, 5 A.D.3d 925, 928, 774 N.Y.S.2d 100).   The witness's testimony that a large percentage of sexual assault victims exhibit no physical injuries to their sexual organs did not shift the burden of proof (see People v. Heer, 12 A.D.3d 1154, 1155, 784 N.Y.S.2d 412;  People v. Shelton, 307 A.D.2d 370, 371, 763 N.Y.S.2d 79, affd. 1 N.Y.3d 614, 777 N.Y.S.2d 9, 808 N.E.2d 1268;  People v. Paun, 269 A.D.2d 546, 703 N.Y.S.2d 256;  People v. Houston, 250 A.D.2d 535, 673 N.Y.S.2d 425;  People v. Green, 239 A.D.2d 248, 249, 657 N.Y.S.2d 669;   People v. Smith, 202 A.D.2d 366, 610 N.Y.S.2d 190).   Nor was her testimony speculative, given that it was based upon evidence already received (see Tarlowe v. Metropolitan Ski Slopes, 28 N.Y.2d 410, 414, 322 N.Y.S.2d 665, 271 N.E.2d 515;  People v. Cruz, 233 A.D.2d 102, 649 N.Y.S.2d 429, affd. 90 N.Y.2d 961, 665 N.Y.S.2d 46, 687 N.E.2d 1329).

 The defendant's contention that the trial court improvidently exercised its discretion in finding that a police witness was qualified to render an expert opinion in the field of blood splatter analysis is without merit, as the witness demonstrated that he possessed the “requisite skill, training, education, knowledge or experience” to provide a reliable opinion (Matott v. Ward, 48 N.Y.2d at 459, 423 N.Y.S.2d 645, 399 N.E.2d 532;  see People v. Hicks, 2 N.Y.3d 750, 751, 778 N.Y.S.2d 745, 811 N.E.2d 7;  People v. Eckhardt, 305 A.D.2d 860, 864, 761 N.Y.S.2d 338;  People v. Rivera, 236 A.D.2d 428, 429, 654 N.Y.S.2d 147).

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 of the crimes charged beyond a reasonable doubt.

Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  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).   Upon the exercise of our factual review power (see CPL 470.15[5] ), 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. Price, 5 A.D.3d 117, 118, 771 N.Y.S.2d 896;  People v. Shelton, 307 A.D.2d at 371, 763 N.Y.S.2d 79, affd. 1 N.Y.3d 614, 777 N.Y.S.2d 9, 808 N.E.2d 1268;  People v. Slater, 173 A.D.2d 1024, 1028, 570 N.Y.S.2d 691).

The defendant's remaining contentions are either without merit or do not require reversal.