People v Vaello

People v Vaello 2012 NY Slip Op 00417 Decided on January 24, 2012 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 January 24, 2012
Tom, J.P., Friedman, DeGrasse, Richter, Manzanet-Daniels, JJ.
1214/03 6615

[*1]6614-The People of the State of New York, Respondent,

v

Jose Vaello, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Claudia S. Trupp of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Mary Jo L.
Blanchard of counsel), for respondent.

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered January 28, 2009, convicting defendant, after a jury trial of rape in the first degree, sodomy in the first degree (two counts) and sexual abuse in the first degree, and sentencing him, as a second violent felony offender, to an aggregate term of 50 years, unanimously affirmed.

The court properly exercised its discretion in permitting the People's expert, a licensed nurse practitioner certified as a sexual assault nurse examiner, to testify about the relationship between the victim's genital injury and forcible sexual intercourse. Given the witness's broad experience and training, she was qualified to testify about the physiological processes of a woman's body during sexual activity, and, concomitantly, about how the victim's injury might have occurred in light of those physiological processes (see People v Welch, 71 AD3d 1329, 1331 [2010], lv denied 15 NY3d 811 [2010]). The witness did not express a direct opinion on the ultimate issue of whether the sexual conduct was forcible or consensual.

The court properly denied, without granting a hearing, defendants' CPL 330.30(2) motion to set aside the verdict on the ground of improper conduct by or relating to a juror. Through his counsel, defendant asserted that a juror's husband made a postverdict remark to defendant that suggested the possibility of such improper conduct. However, on its face, the purported remark made no reference to defendant's case and the inferences defendant's seeks to draw are highly speculative. Therefore, even if defendant's allegations are viewed most favorably to defendant, they did not contain "sworn allegations... of all facts essential to support the motion" (CPL 330.40[2][a]). Moreover, the People submitted an affidavit from the juror's husband denying having made the alleged remark, as well as documentary evidence tending to show that the purported conversation between defendant and the juror's husband could not have taken place. Under these circumstances, a hearing would have served no useful purpose. Defendant is "not entitled to a hearing based on expressions of hope that a hearing might reveal the essential facts" (People v Johnson, 54 AD3d 636, 636 [2008],
lv denied 11 NY3d 898 [2008]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER [*2]
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 24, 2012

CLERK