PEOPLE v. PROFIT (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joanne D. Quinones, J.), rendered December 18, 2018, convicting him of rape in the first degree, sexual abuse in the first degree, and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the verdict of guilt was not against the weight of the evidence.  “Weight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable” (People v. Ford, 233 A.D.3d 891, 893, 221 N.Y.S.3d 689 [alteration and internal quotation marks omitted];  see People v. Abellard, 189 A.D.3d 1605, 1606, 138 N.Y.S.3d 151).  An acquittal would not have been unreasonable here, so this Court “must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” (People v. Branch, 186 A.D.3d 1705, 1706, 130 N.Y.S.3d 834 [internal quotation marks omitted]).  “Based on the weight of the credible evidence, the court then decides whether the jury was justified in finding the defendant guilty beyond a reasonable doubt” (People v. Abellard, 189 A.D.3d at 1606, 138 N.Y.S.3d 151 [internal quotation marks omitted]).  However, “[g]reat deference is accorded to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor” (People v. Ford, 233 A.D.3d at 893, 221 N.Y.S.3d 689;  see People v. Ruiz, 228 A.D.3d 785, 785, 213 N.Y.S.3d 172).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Perez, 168 A.D.3d 988, 988, 92 N.Y.S.3d 106).

The defendant's contention that he was deprived of a fair trial by certain of the prosecutor's comments during the opening statement and summation is mostly unpreserved for appellate review because he failed to object to a majority of the comments at issue or move for a mistrial on that ground (see CPL 470.05[2];  People v. Robinson, 228 A.D.3d 960, 961, 214 N.Y.S.3d 130;  People v. Bensabeur, 225 A.D.3d 891, 892, 207 N.Y.S.3d 666).  To the extent that this contention is unpreserved for appellate review, we decline to reach the issue in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a];  People v. Dawson, 178 A.D.3d 719, 720, 115 N.Y.S.3d 360).

As to the prosecutor's comments to which the defendant objected, thus preserving the issues now raised for appellate review, most of the prosecutor's comments made during the opening statement served to outline the evidence that the People planned to present at trial (see People v. Kingsberry, 194 A.D.3d 843, 844, 143 N.Y.S.3d 887;  People v. McClinton, 180 A.D.3d 712, 714, 119 N.Y.S.3d 132).  “Furthermore, most of the challenged comments made by the prosecutor during summation constituted fair comment on the evidence, [or] were responsive to arguments and theories presented in defense counsel's summation” (People v. Milburn, 226 A.D.3d 927, 929, 209 N.Y.S.3d 513 [citations omitted];  see People v. Gurdon, 153 A.D.3d 1430, 1431, 61 N.Y.S.3d 333).  Nor did the prosecutor's summation improperly shift the burden of proof to the defendant (see People v. Cantoni, 140 A.D.3d 782, 787, 34 N.Y.S.3d 454;  People v. Singh, 128 A.D.3d 860, 863, 9 N.Y.S.3d 324).  Thus, the jury, which was presumed to follow the court's instructions (see People v. Stone, 29 N.Y.3d 166, 171, 55 N.Y.S.3d 730, 78 N.E.3d 175;  People v. Adorno, 210 A.D.3d 113, 126, 177 N.Y.S.3d 260), cannot be deemed to have been unfairly swayed.

The defendant's contention that the two counts of endangering the welfare of a child should be dismissed because they were time-barred is unpreserved for appellate review (see CPL 470.05[2]), as the general motion to dismiss made by defense counsel was not specific enough to preserve this issue (see People v. Costa, 222 A.D.3d 775, 775, 201 N.Y.S.3d 479).  We decline to reach the issue in the exercise of our interest of justice jurisdiction (see People v. Schellenbach, 67 A.D.3d 712, 713, 888 N.Y.S.2d 153).  Further, the defendant failed to demonstrate the absence of strategic or other legitimate explanations for why defense counsel did not object to the endangerment charges as time-barred;  therefore, defense counsel was not ineffective for failing to raise that objection (see People v. Ambers, 26 N.Y.3d 313, 319, 22 N.Y.S.3d 400, 43 N.E.3d 757;  People v. Evans, 16 N.Y.3d 571, 576, 925 N.Y.S.2d 366, 949 N.E.2d 457).

Accordingly, we affirm the judgment.

BRATHWAITE NELSON, J.P., CHRISTOPHER, WAN and GOLIA, JJ., concur.