People v. Resto

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: REINALDO E. RIVERA
• Citation: People v. Resto, 2013 NY Slip Op 1432, 104 A.D.3d 709, 960 N.Y.S.2d 203 (N.Y. App. Div. 2013)
• Decision Date: 06 March 2013
• Parties: The PEOPLE, etc., respondent, v. Angel RESTO, appellant.

104 A.D.3d 709

960 N.Y.S.2d 203

2013 N.Y. Slip Op. 01432

The PEOPLE, etc., respondent,

v.Angel RESTO, appellant.

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

March 6, 2013.

Robert C. Mitchell, Riverhead, N.Y. (John M. Dowden of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.

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 N.Y.2d 192, 196–197, 761 N.Y.S.2d 144, 791 N.E.2d 401;People v. Stewart, 96 A.D.3d 880, 881, 946 N.Y.S.2d 478).

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 N.Y.2d 952, 425 N.Y.S.2d 63, 401 N.E.2d 185,cert. denied446 U.S. 949, 100 S.Ct. 2913, 64 L.Ed.2d 805;People v. Benn, 213 A.D.2d 489, 623 N.Y.S.2d 634). Moreover, the defendant was properly prohibited from inquiring into the victim's past sexual history under the rape shield statute ( seeCPL 60.42; People v. Williams, 81 N.Y.2d 303, 313–314, 598 N.Y.S.2d 167, 614 N.E.2d 730;People v. Rendon, 301 A.D.2d 665, 666, 756 N.Y.S.2d 229;People v. Baldwin, 211 A.D.2d 638, 621 N.Y.S.2d 358).

Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 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 ( 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 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,...