PEOPLE v. HERRERA (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Richard Buchter, J.), rendered May 6, 2016, convicting him of course of sexual conduct against a child in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

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, 348, 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, 495, 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 contends that the Supreme Court unfairly curtailed defense counsel's summation by sustaining the prosecutor's objection to defense counsel's comments regarding the prosecution's expert.  This contention is without merit.  Defense counsel exceeded the bounds of fair comment by calling upon the jury to draw conclusions which were not fairly inferable from the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Andrews, 131 A.D.2d 580, 581, 516 N.Y.S.2d 496).

The defendant's contention that certain remarks made by the prosecutor during summation constituted reversible error is unpreserved for appellate review, since he either failed to object to the remarks at issue, or made only a general objection, and he failed to make a timely motion for a mistrial on the specific grounds he now asserts on appeal (see CPL 470.05[2];  People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89;  People v. Martin, 116 A.D.3d 981, 982, 983 N.Y.S.2d 813;  People v. Arena, 70 A.D.3d 1044, 1047, 895 N.Y.S.2d 514).  In any event, the challenged portions of the prosecutor's summation were fair comment on the evidence and the reasonable inferences to be drawn therefrom, were fair response to the defense counsel's summation, and were within the bounds of permissive rhetorical comment (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Ashwal, 39 N.Y.2d at 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Martin, 116 A.D.3d at 982, 983 N.Y.S.2d 813).

The Supreme Court providently exercised its discretion in redacting a portion of a recording of a telephone call between the victim's mother and the defendant that was monitored by a detective.  The court redacted the recording to exclude a comment made by the mother to the detective after the conversation with the defendant was over.  Contrary to the defendant's contention, the mother's comment was not admissible as an excited utterance or a present sense impression (see People v. Cantave, 21 N.Y.3d 374, 382, 971 N.Y.S.2d 237, 993 N.E.2d 1257;  People v. Carroll, 95 N.Y.2d 375, 385, 718 N.Y.S.2d 10, 740 N.E.2d 1084), or under the rule of completeness (cf. People v. Torre, 42 N.Y.2d 1036, 1037, 399 N.Y.S.2d 203, 369 N.E.2d 759;  People v. Dlugash, 41 N.Y.2d 725, 736, 395 N.Y.S.2d 419, 363 N.E.2d 1155).

Defense counsel's failure to request an intoxication charge did not amount to ineffective assistance of counsel inasmuch as this charge would have been inconsistent with the defense theory that there was no sexual contact with the victim (see People v. Ackerman, 141 A.D.3d 948, 950, 35 N.Y.S.3d 575;  People v. Pacheco, 135 A.D.2d 744, 745, 522 N.Y.S.2d 648).  Although the defendant could have chosen to present inconsistent defenses, such a strategic risk “is not one that the court may foist on an unwilling defendant” (People v. Bradley, 88 N.Y.2d 901, 903, 646 N.Y.S.2d 657, 669 N.E.2d 815).  As such, the Supreme Court did not err in failing to charge the jury on intoxication, sua sponte, since the defendant's theory at trial was that he did not commit the assaults (see People v. Bradley, 88 N.Y.2d at 903–904, 646 N.Y.S.2d 657, 669 N.E.2d 815).

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

The defendant's remaining contention is without merit.

CHAMBERS, J.P., HINDS–RADIX, MALTESE and IANNACCI, JJ., concur.