PEOPLE v. PALACIOS CORREA (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Michael B. Aloise, J.), rendered April 27, 2017, convicting him of criminal sexual act in the first degree, sexual abuse 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 contends that the Supreme Court erred by admitting the complainant's father's testimony that, when he confronted the defendant with allegations of sexual abuse, the defendant responded, “I'm sorry, but it's not like [the complainant] says[,] ․ she knows a lot about sex.” The defendant also contends that the court erred by failing to give a consciousness of guilt jury charge related to this testimony. These contentions are unpreserved for appellate review, since the defendant failed to object to the admission of the testimony or to request such a jury charge (see CPL 470.05[2]; People v. Franks, 137 A.D.3d 936, 937, 28 N.Y.S.3d 72; People v. Bramble, 81 A.D.3d 968, 968, 917 N.Y.S.2d 297). In any event, the testimony was admissible as an admission by the defendant (see People v. Galloway, 93 A.D.3d 1069, 1071, 940 N.Y.S.2d 699; People v. Castellanos, 65 A.D.3d 555, 557, 884 N.Y.S.2d 126; People v. Dixon, 199 A.D.2d 332, 333, 604 N.Y.S.2d 604; People v. Stickles, 267 A.D.2d 604, 605–606, 700 N.Y.S.2d 248), as well as evidence of the defendant's consciousness of guilt (see People v. Bennett, 79 N.Y.2d 464, 470, 583 N.Y.S.2d 825, 593 N.E.2d 279). The probative value of the evidence outweighed its potential for prejudice (see People v. Case, 113 A.D.3d 872, 873, 979 N.Y.S.2d 383). As the testimony was admissible as an admission of the defendant, no jury instruction on consciousness of guilt evidence was required.

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, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdicts of guilt were 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 identity as the perpetrator was established by the testimony at trial, and the lack of physical trauma to the complainant was not inconsistent with the alleged abuse. Affording appropriate deference to the jury's assessment of the witnesses' credibility, we find that the jury's determination to reject the testimony of the defendant's mother-in-law that the defendant was never alone with the complainant on the subject date was justified, especially in light of the credible, contradictory evidence (see People v. Huger, 136 A.D.3d 943, 944, 26 N.Y.S.3d 131).

LEVENTHAL, J.P., CHAMBERS, SGROI and CONNOLLY, JJ., concur.