Opinion
2020–03466 Ind. No. 1468/18
05-11-2022
The PEOPLE, etc., respondent, v. Donovan CHIN, appellant.
Mark Diamond, New York, NY, for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Jason R. Richards and Mary Faldich of counsel), for respondent.
Mark Diamond, New York, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Jason R. Richards and Mary Faldich of counsel), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Felice J. Muraca, J.), rendered February 28, 2020, as amended September 9, 2020, convicting him of sexual abuse in the first degree, sexual abuse in third degree (two counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment, as amended, is affirmed.
The defendant's contention that there was legally insufficient evidence to support the convictions is unpreserved for appellate review (see CPL 470.05[2] ). In any event, 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 support the convictions. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 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 ; 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 certain testimony from four witnesses did not fall within the prompt outcry exception to the hearsay rule is partially unpreserved for appellate review (see CPL 470.05[2] ), and, in any event, without merit. As a general rule, " ‘evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place’ " ( People v. Rosario, 17 N.Y.3d 501, 511, 934 N.Y.S.2d 59, 958 N.E.2d 93, quoting People v. McDaniel, 81 N.Y.2d 10, 16, 595 N.Y.S.2d 364, 611 N.E.2d 265 ; see People v. Gross, 172 A.D.3d 741, 743, 99 N.Y.S.3d 367 ; People v. Evangelista, 155 A.D.3d 972, 65 N.Y.S.3d 240 ). A victim's outcry is prompt if it is made " ‘at the first suitable opportunity’ " ( People v. McDaniel, 81 N.Y.2d at 17, 595 N.Y.S.2d 364, 611 N.E.2d 265, quoting People v. O'Sullivan, 104 N.Y. 481, 486, 10 N.E. 880 ), which is "a relative concept dependent on the facts" ( People v. McDaniel, 81 N.Y.2d at 17, 595 N.Y.S.2d 364, 611 N.E.2d 265 ), so that "what might qualify as prompt in one case might not in another" ( id. ; see People v. Rosario, 17 N.Y.3d at 512–513, 934 N.Y.S.2d 59, 958 N.E.2d 93 ; People v. Gross, 172 A.D.3d at 743, 99 N.Y.S.3d 367 ; People v. Evangelista, 155 A.D.3d at 972, 65 N.Y.S.3d 240 ). Here, the complainant's outcries were prompt since the complainant made them while the abuse was ongoing (see People v. Rosario, 17 N.Y.3d at 515, 934 N.Y.S.2d 59, 958 N.E.2d 93 ; People v. Corrion, 195 A.D.3d 448, 144 N.Y.S.3d 852 ; People v. Gross, 172 A.D.3d at 743, 99 N.Y.S.3d 367 ).
The Supreme Court's jury charge regarding prompt outcry, which was substantially in accordance with the language contained in the pattern criminal jury instructions, was proper (see CJI2d[NY] Prompt Outcry; People v. Mateo, 2 N.Y.3d at 416 n. 20, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Grant, 170 A.D.3d 888, 889, 96 N.Y.S.3d 104 ).
Contrary to the defendant's contention, he was not deprived of his constitutional right to present a defense by the Supreme Court's application of the Rape Shield Law (see CPL 60.42 ). The defendant was given ample opportunity to develop evidence at trial to support his defenses, including regarding the complainant's motive to fabricate her accusations against him (see People v. Curtis, 188 A.D.3d 1090, 1091, 132 N.Y.S.3d 683 ; People v. Weberman, 134 A.D.3d 862, 22 N.Y.S.3d 97 ; People v. Simmons, 106 A.D.3d 1115, 1116, 965 N.Y.S.2d 618 ).
The defendant was provided with the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
DILLON, J.P., MILLER, GENOVESI and DOWLING, JJ., concur.