People v Penefort (Benigno)

[*1] People v Penefort (Benigno) 2015 NY Slip Op 50162(U) Decided on February 25, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 25, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Schoenfeld, Ling-Cohan, JJ.
570056/2014

The People of the State of New York, Respondent, -

against

Benigno Penefort, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (John H. Wilson, J.), rendered September 20, 2013, after a nonjury trial, convicting him of two counts of sexual abuse in the third degree and two counts of attempted endangering the welfare of a child, and imposing sentence.

Per Curiam.

Judgment of conviction (John H. Wilson, J.), rendered September 20, 2013, affirmed.

Defendant's legal sufficiency claims are unpreserved, since defense counsel made only a general motion for a trial order of dismissal based on the People's alleged failure to make out a prima facie case (see CPL 470.05; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). As an alternative holding, we reject the legal sufficiency claims on the merits. The infant (10-year old) victim's account of the two incidents of unwanted sexual touching was not implausible, nor was there any "innocent explanation" for the touching (see Matter of Stephen F., 300 AD2d 52, 53 [2002]). We also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]).

In light of the child victim's young age and expressed fear of not being believed if she disclosed the abuse, her report of the crimes to her mother, made within one week of the second incident, was properly admitted under the prompt outcry exception to the hearsay rule (see People v Stuckey, 50 AD3d 447, 448 [2008], lv denied 11 NY3d 742 [2008]).

Defendant's constitutional claims stemming from several of the court's evidentiary rulings are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we reject them both on the ground that defendant is essentially raising state-law issues that are not of constitutional dimension, and on the ground that these claims lack substantial merit in any event.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: February 25, 2015