People v. Rosario

People v Rosario (2015 NY Slip Op 00798)

People v Rosario

2015 NY Slip Op 00798

Decided on February 3, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 3, 2015
Mazzarelli, J.P., Renwick, Andrias, Saxe, Kapnick, JJ.

13737 1830/08 5282/08

[*1] The People of the State of New York, Respondent,

v

Wilfredo Rosario, Defendant-Appellant.

Richard M. Greenberg, Office of the Appellate Defender, New York (Sara Gurwitch of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), for respondent.

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered August 4, 2010, convicting defendant, after two jury trials, of sexual abuse in the first degree, sexual abuse in the third degree (two counts), official misconduct (two counts), attempted coercion in the second degree, and unlawful imprisonment in the second degree, and sentencing him to an aggregate term of 5 years, unanimously affirmed.

With regard to each conviction at each of defendant's two trials, the verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348—349 [2007]). There is no basis for disturbing the credibility determinations made by the jury at either trial. As to each conviction, the evidence satisfied the elements of the crime. In particular, there was ample evidence to support the forcible compulsion (see Penal Law § 130.00[8]) element of first-degree sexual abuse.

Defendant's challenges to the prosecutor's conduct at both trials are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. The prosecutor's questioning of witnesses and summations, which were responsive to issues raised by the defense, did not deprive defendant of a fair trial (see People v Overlee, 236 AD2d 133 [1st Dept 1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1st Dept 1992], lv denied 81 NY2d 884 [1993]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 3, 2015

CLERK