ARANDA, OSCAR, PEOPLE v ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1054
KA 11-00919
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
OSCAR A. ARANDA, DEFENDANT-APPELLANT.
MULDOON & GETZ, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR
DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Melchor E.
Castro, A.J.), rendered April 29, 2011. The judgment convicted
defendant, upon a nonjury verdict, of predatory sexual assault against
a child and sexual abuse in the first degree (three counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him,
upon a nonjury verdict, of predatory sexual assault against a child
(Penal Law § 130.96) and three counts of sexual abuse in the first
degree (§ 130.65 [3]). Defendant failed to preserve for our review
his contention that his statement to the victim’s stepfather was
inadmissible hearsay and did not fall within the admission exception
to the hearsay rule (see CPL 470.05 [2]; see generally People v Jones,
92 AD3d 1218, 1218, lv denied 19 NY3d 962), and we decline to exercise
our power to address it as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). We reject defendant’s further
contention that defense counsel’s failure to object to that testimony
constituted ineffective assistance of counsel. Defendant’s statement
was indeed an admission (see People v Ward, 107 AD3d 1605, 1605; see
also Jerome Prince, Richardson on Evidence § 8-204 [Farrell 11th ed
1995]), and thus there was little or no chance that the objection
would have been sustained (see generally People v Lewis, 67 AD3d 1396,
1396, lv denied 14 NY3d 772). Finally, viewing the evidence in light
of the elements of the crimes in this nonjury trial (see People v
Danielson, 9 NY3d 342, 349), we reject defendant’s contention that the
verdict is against the weight of the evidence (see People v Bleakley,
69 NY2d 490, 495).
Entered: November 8, 2013 Frances E. Cafarell
Clerk of the Court