PEOPLE v. DELATORRES

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Luis DELATORRES, Defendant-Appellant.

Decided: November 17, 2006

PRESENT:  HURLBUTT, A.P.J., GORSKI, SMITH, AND CENTRA, JJ. David R. Morabito, East Rochester, for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him after a jury trial of, inter alia, rape in the first degree (Penal Law § 130.35[1] ) arising from his sexual contact with his girlfriend's 13-year-old daughter.   Defendant did not move to suppress the statements that he made to the police at the time of his arrest and therefore failed to preserve for our review his present contention that he did not waive his Miranda rights before making the statements and thus that the statements were involuntarily made (see generally People v. Robinson, 8 A.D.3d 1028, 1029, 778 N.Y.S.2d 808, affd. 5 N.Y.3d 738, 800 N.Y.S.2d 369, 833 N.E.2d 704, cert. denied 546 U.S. 988, 126 S.Ct. 573, 163 L.Ed.2d 479;  People v. Anderson, 274 A.D.2d 974, 711 N.Y.S.2d 376, lv. denied 95 N.Y.2d 863, 715 N.Y.S.2d 217, 738 N.E.2d 365).

 Defendant also failed to preserve for our review his contention that the prosecutor violated his right to discovery pursuant to CPL 240.20 inasmuch as he did not object to the allegedly untimely disclosure of certain recordings on the specific grounds raised on appeal (see generally People v. Robinson, 88 N.Y.2d 1001, 648 N.Y.S.2d 869, 671 N.E.2d 1266;  People v. Smith, 24 A.D.3d 1253, 806 N.Y.S.2d 825, lv. denied 6 N.Y.3d 818, 812 N.Y.S.2d 458, 845 N.E.2d 1289).   In any event, defendant failed to establish that the People violated CPL 240.20 and, even assuming, arguendo, that there was a violation, we conclude that reversal based on that alleged violation would not be required.  “The People's delay in complying with the provisions of CPL 240.20 constitutes reversible error ․ only when the delay substantially prejudices defendant,” and here defendant failed to establish that he was “substantially prejudice[d]” by the alleged delay (People v. Benitez, 221 A.D.2d 965, 966, 634 N.Y.S.2d 328, lv. denied 87 N.Y.2d 970, 642 N.Y.S.2d 199, 664 N.E.2d 1262;  see also People v. Welch, 281 A.D.2d 906, 723 N.Y.S.2d 292, lv. denied 97 N.Y.2d 734, 740 N.Y.S.2d 708, 767 N.E.2d 165;  People v. Pagano, 135 A.D.2d 1102, 523 N.Y.S.2d 326, lv. denied 71 N.Y.2d 1031, 530 N.Y.S.2d 566, 526 N.E.2d 58).

 Defendant failed to preserve for our review his further contention that the conviction is not supported by legally sufficient evidence inasmuch as he failed to renew his challenge to the legal sufficiency of the evidence after presenting evidence (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Adamus, 31 A.D.3d 1210, 1211, 817 N.Y.S.2d 837).   In any event, the evidence is legally sufficient to support the conviction and, contrary to defendant's further contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “The credibility of the victim and the weight to be accorded her testimony were matters for the jury” (People v. Halwig, 288 A.D.2d 949, 949, 732 N.Y.S.2d 208, lv. denied 98 N.Y.2d 710, 749 N.Y.S.2d 8, 778 N.E.2d 559;  see People v. Gray, 15 A.D.3d 889, 890, 788 N.Y.S.2d 792, lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: