People v. Jimenez

• Decision Date: 22 March 2017
• Docket Number: 2015-06320, Ind. No. 2279/12.
• Citation: 50 N.Y.S.3d 435,148 A.D.3d 1054
• Parties: The PEOPLE, etc., respondent, v. Jose E. JIMENEZ, appellant.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1054

50 N.Y.S.3d 435

The PEOPLE, etc., respondent,

v.Jose E. JIMENEZ, appellant.

2015-06320, Ind. No. 2279/12.

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

March 22, 2017.

James Kousouros, New York, NY, for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbott, and Tina Grillo of counsel), for respondent.

MARK C. DILLON, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered June 3, 2015, convicting him of predatory sexual assault against a child, course of sexual conduct against a child in the first degree (two counts), criminal contempt in the second degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that he was deprived of a fair trial due to the Supreme Court's display of bias against the defense and excessive interference is unpreserved for appellate review (see CPL 470.05[2] ; People v. Prado, 4 N.Y.3d 725, 726, 790 N.Y.S.2d 418, 823 N.E.2d 824 ; People v. Charleston, 56 N.Y.2d 886, 887–888, 453 N.Y.S.2d 399, 438 N.E.2d 1114 ; People v. Rivera, 125 A.D.3d 694, 695, 999 N.Y.S.2d 554 ; People v. Ojeda, 118 A.D.3d 919, 919, 988 N.Y.S.2d 222 ). In any event, the record does not support the defendant's claims of bias or excessive interference (see People v. Arnold, 98 N.Y.2d 63, 67, 745 N.Y.S.2d 782, 772 N.E.2d 1140 ; People v. Rivera,

125 A.D.3d at 695, 999 N.Y.S.2d 554 ; People v. Melendez, 31 A.D.3d 186, 197, 815 N.Y.S.2d 551 ).

The defendant's contentions that the Supreme Court's limitation of his cross-examination of the prosecution's witnesses and preclusion of his sister as a defense witness deprived him of his constitutional right to present a defense are unpreserved for appellate review and, in any event, without merit (see CPL 470.05[2] ; People v. May, 138 A.D.3d 1024, 1026, 30 N.Y.S.3d 262 ; People v. Frazier, 125 A.D.3d 551, 551, 1 N.Y.S.3d 812 ; People v. Caldwell, 115 A.D.3d 870, 870, 982 N.Y.S.2d 356 ; People v. Strzelecki, 108 A.D.3d 644, 645, 968 N.Y.S.2d 196 ).

The defendant's contention that the Supreme Court deprived him of his constitutional right to present a defense by denying his application to allow a defense expert to testify via Skype is unpreserved for appellate review (see CPL 470.05[2] ). In any event, the court did not improvidently exercise its discretion, as the defendant did not demonstrate necessity (see People v. Wrotten, 14 N.Y.3d 33, 40, 896 N.Y.S.2d 711, 923 N.E.2d 1099 ; People v. Towsley, 85 A.D.3d 1549, 1550, 924 N.Y.S.2d 708 ).

The defendant also failed to preserve for appellate review his contention that testimony from the mother of one of the complainants as to that complainant's disclosure of sexual abuse constituted improper bolstering (see CPL 470.05[2] ; People v. Tucker, 117 A.D.3d 1090, 1090, 986 N.Y.S.2d 246 ; People v. Batista, 92 A.D.3d 793, 793, 938 N.Y.S.2d 479 ). In any event, the Supreme Court properly admitted the testimony, as " ‘nonspecific testimony about [a] child-victim's reports of sexual abuse [does] not constitute improper bolstering [when] offered for the relevant, nonhearsay purpose of explaining the investigative process and completing the narrative of events leading to the defendant's arrest’ " (People v. Ludwig, 24 N.Y.3d 221, 231, 997 N.Y.S.2d 351, 21 N.E.3d 1012, quoting People v. Rosario, 100 A.D.3d 660, 661, 953 N.Y.S.2d 299 ; see People v. Gross, 26 N.Y.3d 689, 694–695, 27 N.Y.S.3d 459, 47 N.E.3d 738 ; People v. Cullen, 24 N.Y.3d 1014, 1016, 997 N.Y.S.2d 348, 21 N.E.3d 1009 ).

The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a "mixed claim" of ineffective assistance (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53...