PEOPLE v. ROBINSON (2024)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (John Hecht, J.), rendered September 29, 2022, convicting him of course of sexual conduct against a child in the first degree and course of sexual conduct against a child in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the evidence is partially unpreserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946).  In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 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.  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, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 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).

The defendant's contention that he was deprived of a fair trial by certain of the prosecutor's comments during the opening statement is, in the first instance, unpreserved for appellate review since the defendant failed to object to one challenged comment.  In the second instance, the defendant made only general objections to the other challenged comments, and failed to request further curative relief when his objections were sustained or move for a mistrial on the grounds raised on appeal (see CPL 470.05[2];  People v. Silva, 175 A.D.3d 515, 515, 103 N.Y.S.3d 835;  People v. Wallace, 123 A.D.3d 1151, 1152, 997 N.Y.S.2d 756).  In any event, the defendant's contention is without merit.  To the extent that the challenged comments were improper, they were not so pervasive or egregious as to have deprived the defendant of a fair trial (see People v. Joseph, 204 A.D.3d 694, 695, 163 N.Y.S.3d 873;  People v. Thompson, 181 A.D.3d 833, 835, 118 N.Y.S.3d 430).

The defendant's contention that the Supreme Court imposed a harsher sentence as punishment for exercising his right to a jury trial rather than accepting a plea offer is without merit.  “[T]he fact that the sentence imposed after exercising his [or her] right to proceed to trial was greater than the sentence offered during plea negotiations does not, standing alone, establish that the defendant was punished for exercising his [or her] right to trial” (People v. Nicholson, 211 A.D.3d 852, 853, 179 N.Y.S.3d 357 [internal quotation marks omitted];  see People v. Douglas, 200 A.D.3d 795, 799, 157 N.Y.S.3d 539).  “A review of the record reveals no retaliation or vindictiveness against the defendant for electing to proceed to trial” (People v. Kaye, 209 A.D.3d 873, 874–875, 176 N.Y.S.3d 678).  Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

DUFFY, J.P., CHRISTOPHER, FORD and LOVE, JJ., concur.