People v Rodriguez

People v Rodriguez 2009 NY Slip Op 07929 [67 AD3d 417] November 5, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

The People of the State of New York, Respondent,
v
Pablo Rodriguez, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Heather L. Holloway of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), for respondent.

Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered March 21, 2007, convicting defendant, after a jury trial, of course of sexual conduct against a child in the first degree, and sentencing him to a term of 20 years, unanimously affirmed.

The verdict 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 jury's determinations concerning credibility. The child victim's inability to remember certain details, and her delay in reporting the pattern of abuse, were satisfactorily explained.

The trial court properly denied defendant's request for a missing witness charge regarding the child's older brother, since defendant did not demonstrate that he could have provided any material noncumulative information (see People v Ortiz, 44 AD3d 364 [2007], lv denied 9 NY3d 1008 [2007]). The child testified that her brother was not present when defendant abused her, and the record indicates that he could have testified, at most, about insignificant matters such as defendant and the victim's unremarkable movements within the apartment.

The court's instructions were sufficient to prevent defendant from being prejudiced by those portions of the prosecutor's summation that allegedly shifted the burden of proof (see [*2]People v Santiago, 52 NY2d 865 [1981]; see also People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]), and a mistrial was not warranted. Concur—Mazzarelli, J.P., Andrias, Friedman, Nardelli and Moskowitz, JJ.