PEOPLE v. ZUNIGA (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (George E. Fufidio, Jr., J.), rendered January 15, 2020, convicting him of sexual abuse in the first degree and endangering the welfare of a child, 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 certain statements he made to law enforcement officials.

ORDERED that the judgment is affirmed.

The County Court properly denied that branch of the defendant's omnibus motion which was to suppress certain statements he made to law enforcement officials on November 8, 2018.  The evidence at the suppression hearing supported the court's conclusion that the challenged statements were not the product of a custodial interrogation (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694;  People v. Yukl, 25 N.Y.2d 585, 588, 307 N.Y.S.2d 857, 256 N.E.2d 172).  Under the totality of the circumstances, a reasonable person, innocent of any crime, would not have believed that he or she was in custody at the time the statements were made (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694;  People v. Yukl, 25 N.Y.2d at 590–591, 307 N.Y.S.2d 857, 256 N.E.2d 172;  People v. Hirji, 185 A.D.3d 1053, 1055–1056, 128 N.Y.S.3d 570).

The defendant's challenge to the legal sufficiency of the evidence on the count of sexual abuse in the first degree is unpreserved for appellate review (see CPL 470.05[2];  People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61).  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 of sexual abuse in the first degree beyond a reasonable doubt.  A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact when the other person is incapable of consent by reason of being physically helpless (Penal Law § 130.65[2]).  A person is physically helpless if he or she is “unconscious or for any other reason is physically unable to communicate unwillingness to an act” (id. § 130.00[7];  see People v. Edison, 167 A.D.3d 769, 770–771, 89 N.Y.S.3d 314).  Here, the People met their burden of establishing that the defendant subjected the complaining witness to sexual contact while she was unable to consent due to being physically helpless, since she testified that she was asleep when the sexual contact started (see People v. Edison, 167 A.D.3d at 770, 89 N.Y.S.3d 314;  People v. Chodakowski, 162 A.D.3d 476, 476, 75 N.Y.S.3d 47).

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;  People v. Bleakley, 69 N.Y.2d 490, 494, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt on the counts of sexual abuse in the first degree and endangering the welfare of a child 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 the County Court's modified Allen charge (see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528) was coercive is unpreserved for appellate review due to his failure to object to that charge at trial (see CPL 470.05[2];  People v. Grant, 151 A.D.3d 883, 884, 58 N.Y.S.3d 77).  In any event, the charge was proper, as the court did not attempt to persuade the jurors to abandon their beliefs or convictions, to coerce dissenting jurors to reach a particular verdict, or to shame the jurors into reaching any verdict (see People v. Harrison, 212 A.D.3d 651, 653, 180 N.Y.S.3d 624;  People v. Grant, 151 A.D.3d at 884, 58 N.Y.S.3d 77;  People v. Muirhead, 110 A.D.3d 833, 834–835, 972 N.Y.S.2d 681).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

BARROS, J.P., CHRISTOPHER, WARHIT and MCCORMACK, JJ., concur.