PEOPLE v. HERNANDEZ (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (James P. Sullivan, J.), rendered August 6, 2014, convicting him of course of sexual conduct against a child in the first degree (two counts) and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court erred in admitting certain photographs into evidence is unpreserved for appellate review and, in any event, without merit (see People v. Khan, 88 A.D.3d 1014, 1015, 931 N.Y.S.2d 393;  People v. Sampson, 67 A.D.3d 1031, 1032, 890 N.Y.S.2d 557).

Contrary to the defendant's contention, he was not deprived of a fair trial by the admission of “prompt outcry” evidence without a limiting instruction, as the Supreme Court, during the final jury charge, instructed the jury regarding the proper use of such evidence (see People v. Bernardez, 85 A.D.3d 936, 938, 925 N.Y.S.2d 604).

During the testimony of the guardian of one of the complainants, the Supreme Court admitted into evidence the recording of a 911 call made by the guardian shortly after she observed the defendant in a bedroom with the complainant.  Contrary to the defendant's contention, the recording of the 911 call was properly admitted into evidence (see People v. Buie, 86 N.Y.2d 501, 508–509, 634 N.Y.S.2d 415, 658 N.E.2d 192;  People v. Thompson, 132 A.D.3d 1364, 1365, 17 N.Y.S.3d 820).

The defendant's challenge to the admission of hearsay testimony of certain police officers regarding the nature of the complaint they received is unpreserved for appellate review and, in any event, without merit (see People v. Singletary, 270 A.D.2d 903, 706 N.Y.S.2d 551;  People v. Ayala, 247 A.D.2d 204, 668 N.Y.S.2d 351).

The defendant's challenge to the admission of testimony regarding the emotional condition of one of the complainants and his guardian is unpreserved for appellate review and, in any event, without merit, as the testimony was both relevant (see People v. Gebert, 118 A.D.2d 799, 801, 500 N.Y.S.2d 299) and not unduly cumulative or duplicative (see People v. Keane, 262 A.D.2d 658, 659, 691 N.Y.S.2d 887).

During the testimony of one of the prosecution's expert witnesses, the expert was permitted to refer to various entries from the medical records of one of the complainants, which entries reflected certain factual information conveyed by the complainant to medical personnel.  The defendant's trial counsel objected only once, when the witness appeared to be reading directly from the records.  The objection was sustained on that ground, and trial counsel requested no further relief.  Under the circumstances, the defendant's contentions with respect to the expert's testimony are unpreserved for appellate review.  In any event, since the complainant himself had already testified as to the underlying facts, the information contained in the entries was merely cumulative and cannot be said to have deprived the defendant of a fair trial (cf. People v. Sylar, 21 A.D.3d 1397, 801 N.Y.S.2d 661).

The defendant's challenge to certain remarks made by the prosecutor during summation is largely unpreserved for appellate review (see People v. Murphy, 133 A.D.3d 690, 690–691, 20 N.Y.S.3d 127;  People v. Joubert, 125 A.D.3d 686, 999 N.Y.S.2d 552).  In any event, most of the remarks were either fair comment on the evidence, fair response to the defendant's summation, or permissible rhetorical comment (see People v. Withfield, 106 A.D.3d 760, 761, 963 N.Y.S.2d 730;  People v. Boyce, 54 A.D.3d 1052, 1053, 866 N.Y.S.2d 203;  People v. Tucker, 27 AD3d 592, 811 N.Y.S.2d 432;  People v. Russo, 201 A.D.2d 512, 607 N.Y.S.2d 413, affd 85 N.Y.2d 872, 626 N.Y.S.2d 51, 649 N.E.2d 1195).  Although some of the prosecutor's remarks were improper, those remarks were not so flagrant or pervasive as to deny the defendant a fair trial (see People v. Lopez, 150 A.D.3d 1266, 1267, 52 N.Y.S.3d 902;  People v. Jackson, 150 A.D.3d 1025, 55 N.Y.S.3d 338), and to the extent that any prejudicial effect may have resulted from any of the challenged remarks, it was ameliorated by the Supreme Court's instructions (see People v. Murphy, 133 A.D.3d at 691, 20 N.Y.S.3d 127;  People v. Joubert, 125 A.D.3d at 686, 999 N.Y.S.2d 552).

Contrary to the defendant's contention, his trial counsel's failure to preserve certain claims for appellate review did not constitute ineffective assistance of counsel (see People v. Foster, 153 A.D.3d 853, 855, 60 N.Y.S.3d 372;  People v. Bedford, 95 A.D.3d 1226, 1227, 944 N.Y.S.2d 638;  People v. Erskine, 90 A.D.3d 674, 675, 933 N.Y.S.2d 740).

MASTRO, J.P., CHAMBERS, SGROI and MALTESE, JJ., concur.