PEOPLE v. ROVELO (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Karen M. Wilutis, J.), rendered February 6, 2024, convicting him of course of sexual conduct against a child in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the County Court erred in precluding the admission into evidence of certain “unfounded” Child Protective Services (hereinafter CPS) reports is without merit.  “Where a [child abuse and maltreatment] report is subject to [a CPS] investigation, and is determined to be ‘unfounded,’ the report must be ‘legally sealed’ (Matter of Corrigan v New York State Off. of Children & Family Servs., 129 AD3d 1073, 1074, quoting Social Services Law § 422[5][b] ).  Social Services Law § 422(5)(a) enumerates one instance when an unfounded CPS report may be admitted into evidence in a criminal court, specifically, “for the purpose of prosecuting a violation of subdivision four of section 240.50 of the [P]enal [L]aw.” Since the present action is not a prosecution for a violation of Penal Law § 240.50(4), there was no statutory authority to admit the unfounded reports in this action.

The County Court erred in admitting into evidence certain sex toys that were recovered during the execution of a search warrant of the defendant's bedroom.  The People failed to established that the sex toys admitted into evidence were “identical to that involved in the crime” and thus failed to lay the proper foundation for their admissibility (People v Davidson, 111 AD3d 848, 848;  see People v Julian, 41 NY2d 340, 342–343).  Nonetheless, any error in this regard was harmless, as the evidence of the defendant's guilt was overwhelming, and there was no significant probability that any such error contributed to the defendant's conviction (see People v Frankline, 27 NY3d 1113, 1115–1116;  People v Crimmins, 36 NY2d 230, 241–242).

Contrary to the People's contention, the defendant preserved for appellate review his contention that the evidence was legally insufficient to convict him of course of sexual conduct against a child in the first degree (see generally People v Narayan, 54 NY2d 106).  However, viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt of course of sexual conduct against a child in the first degree (see People v Mendez, 213 AD3d 868, 869;  People v Green–Faulkner, 189 AD3d 1070, 1071).  Contrary to the defendant's contention, the evidence was legally sufficient to establish that he engaged in two or more acts of sexual conduct over a period of at least three months (see Penal Law § 130.75[1][a];  People v Green–Faulkner, 189 AD3d at 1071).  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 NY3d 342, 348), 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 NY3d 383, 410;  People v Mendez, 213 AD3d at 869).  Upon reviewing the record here, we are satisfied that the verdict of guilt as to that count was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

The defendant's contention that he was deprived of a fair trial by various comments made by the prosecutor in summation is mostly unpreserved for appellate review, as, with respect to the majority of the comments, the defendant failed to object to the comments, made only general objections, or failed to request curative instructions (see People v Milburn, 226 AD3d 927, 929–930;  People v Mairena, 160 AD3d 986, 988).  In any event, the defendant's contention is without merit.  Most of the challenged comments made by the prosecutor during summation constituted fair comment on the evidence or were permissible rhetorical comment (see People v Dawson, 178 AD3d 719, 720;  People v Hatcher, 130 AD3d 648, 649).  To the extent that some of the prosecutor's summation comments were improper, they were not so pervasive or egregious as to deprive the defendant of a fair trial (see People v Reid, 212 AD3d 845, 846;  People v Reneau, 209 AD3d 677, 678).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

The defendant's remaining contentions are mostly unpreserved for appellate reivew and, in any event, without merit.

DILLON, J.P., CHRISTOPHER, LANDICINO and HOM, JJ., concur.