People v. Nunez-Garcia

• Citation: 117 N.Y.S.3d 56,178 A.D.3d 1087
• Decision Date: 24 December 2019
• Docket Number: Ind.No. 708N/14,2016–08488
• Parties: The PEOPLE, etc., Respondent, v. Jose NUNEZ–GARCIA, Appellant.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 1087
117 N.Y.S.3d 56

The PEOPLE, etc., Respondent,
v.
Jose NUNEZ–GARCIA, Appellant.

2016–08488
Ind.No. 708N/14

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

Argued—October 9, 2018
December 24, 2019

117 N.Y.S.3d 57

N. Scott Banks, Hempstead, N.Y. (Tammy Feman and Marquetta Christy of counsel), for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Daniel Bresnahan and Judith R. Sternberg of counsel), for respondent.

LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.

117 N.Y.S.3d 58

DECISION & ORDER

178 A.D.3d 1087

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Helene F. Gugerty, J.), rendered July 19, 2016, convicting him of rape in the first degree, rape in the third degree, and sexual abuse in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions, of the suppression of physical evidence and the defendant's statements to law enforcement officials. Justice Maltese has been substituted for former Justice Sgroi (see 22 NYCRR 1250.1 [b] ).

ORDERED that the judgment is affirmed.

We agree with the Supreme Court's determination denying suppression of physical evidence and the defendant's statements to law enforcement officials. The credible evidence at the suppression hearing established that the police had probable cause to arrest the defendant (see People v. Williams , 127 A.D.3d 1114, 1115–1116, 7 N.Y.S.3d 434 ).

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), 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

178 A.D.3d 1088

(see CPL 470.15[5] ; People v. Danielson , 9 N.Y.3d 342, 348–349, 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 demeanor (see People v. Mateo , 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; 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 of guilt 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 ).

The defendant's contention that the indictment was fatally defective because it did not adequately inform him of the factual allegations against him and because the charges in the indictment were multiplicitous and duplicitous is unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, without merit. An indictment must contain "[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, ... asserts facts supporting every element of the offense charged and the defendant's or defendants' commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation" ( CPL 200.50[7][a] ). Here, each count of the indictment placed the defendant on notice of the conduct that was the subject of the accusations against him with respect to the illegal conduct in which he engaged on a particular day with a single victim (see id. ). To the extent that certain language was omitted from the count charging the defendant with rape in the third degree, such omission was a minor defect which did not prejudice the defendant as the missing language appeared before the "to wit" clause for that count.

"An indictment is multiplicitous when two separate counts charge the same crime. Multiplicity does not exist where each count requires proof of an additional

117 N.Y.S.3d 59

fact that the other does not" ( People v. Saunders , 290 A.D.2d 461, 463, 736 N.Y.S.2d 90 [citations and internal quotation marks omitted] ). The count of rape in the first degree required an element of sexual intercourse by forcible compulsion ( Penal Law § 130.35[1] ), while the count of rape in the...