

People v Hernandez (2015 NY Slip Op 03184)





People v Hernandez


2015 NY Slip Op 03184


Decided on April 15, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 15, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.


2009-04687
 (Ind. No. 106/08)

[*1]The People of the State of New York, respondent,
vRodolfo Hernandez, appellant.


Lynn W. L. Fahey, New York, N.Y. (Anna Pervukhin and Lisa Napoli of counsel), for appellant.
Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered May 1, 2009, convicting him of 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.
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), 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 NY2d 383, 410; People v Bleakley, 69 NY2d 490, 495). 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).
Contrary to the defendant's contention, the child's out-of-court-communications, as testified to by her parents, were not erroneously admitted into evidence under the excited utterance exception to the hearsay rule. The surrounding circumstances reasonably justify the conclusion that the child's communications were not made under the impetus of studied reflection (see People v Edwards, 47 NY2d 493, 497; People v Whitlock, 95 AD3d 909, 910; People v Clemente, 84 AD3d 829, 830). Further, because the communications were nontestimonial in nature, the admission of this evidence did not violate the defendant's right to confront a witness against him (see People v Clemente, 84 AD3d at 830; People v Legere, 81 AD3d 746, 750; People v Melendez, 71 AD3d 1166, 1167).
The defendant's challenge to certain testimony of the People's medical expert is unpreserved for appellate review (see People v Arroyo, 59 AD3d 634, 634; People v Clas, 54 AD3d 770, 770), and, in any event, is without merit (see generally People v Rivers, 18 NY3d 222, 228).
Viewed in their totality, the circumstances reveal that the defendant was not deprived of the effective assistance of counsel (see Strickland v Washington, 466 US 668; People v Baldi, 54 NY2d 137).
The defendant's remaining contention is without merit.
BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


