People v. Fernandez

• Decision Date: 26 March 2014
• Parties: The PEOPLE, etc., respondent, v. Jose FERNANDEZ, appellant.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 977
982 N.Y.S.2d 174
2014 N.Y. Slip Op. 02074

The PEOPLE, etc., respondent,
v.
Jose FERNANDEZ, appellant.

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

March 26, 2014.

[982 N.Y.S.2d 175]

Aidala & Bertuna, P.C., New York, N.Y. (Arthur L. Aidala of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, Laura T. Ross of counsel), for respondent.

RUTH C. BALKIN, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and HECTOR D. LASALLE, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered June 12, 2012, convicting him of rape in the first degree, upon a jury verdict, and imposing sentence.

[982 N.Y.S.2d 176]

ORDERED that the judgment is affirmed.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 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 their demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;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 verdict was 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). Any discrepancies between the complainant's prior out-of-court statements, the complainant's grand jury testimony, and the complainant's trial testimony, “were not of such magnitude as to render [her] testimony incredible or unreliable” ( People v. Scipio, 61 A.D.3d 899, 899, 878 N.Y.S.2d 747).

The defendant's contention that the improper admission of certain photographs of the complainant deprived him of a fair trial is without merit. “[P]hotographs are admissible if they tend ‘to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered’ ” ( People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178, quoting People v. Pobliner, 32 N.Y.2d 356, 369, 345 N.Y.S.2d 482, 298 N.E.2d 637). They should be excluded “ ‘only if [their] sole purpose is to arouse the emotions of the jury and to prejudice the defendant’ ” ( People v. Wood, 79 N.Y.2d at 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178 quoting People v. Pobliner, 32 N.Y.2d at 370, 345 N.Y.S.2d 482, 298 N.E.2d 637). Here, in light of the circumstances of this case, the trial court did not improvidently exercise its discretion in admitting the photographs taken of the complainant at the hospital because they were relevant with respect to the nature and extent...