People v. Resto

Mar 6, 2013
Versions:104 A.D.3d 709
960 N.Y.S.2d 203

Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.), rendered July 14, 2009, convicting him of criminal sexual act in the third degree (two counts) and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant‘s contention, the trial court providently exercised its discretion in denying his request for a missing witness charge as to the victim‘s mother, as the defendant did not show that the mother would have provided noncumulative testimony that was favorable to the prosecution (see People v Savinon, 100 NY2d 192, 196-197 [2003]; People v Stewart, 96 AD3d 880, 881 [2012]).

Additionally, the trial court providently exercised its discretion in precluding the defendant from cross-examining the victim about a past allegation of sexual abuse because the defendant provided no basis for his contention that the prior allegation was false (see People v Mandel, 48 NY2d 952 [1979], cert denied 446 US 949 [1980]; People v Benn, 213 AD2d 489 [1995]). Moreover, the defendant was properly prohibited from inquiring into the victim‘s past sexual history under the rape shield statute (see CPL 60.42; People v Williams, 81 NY2d 303, 313-314 [1993]; People v Rendon, 301 AD2d 665, 666 [2003]; People v Baldwin, 211 AD2d 638 [1995]).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant‘s guilt beyond a reasonable doubt. 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 [2007]), 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 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). 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 NY3d 633 [2006]). Rivera, J.P., Chambers, Hall and Miller, JJ., concur.