People v Gonzalez (Wilfredo)

[*1] People v Gonzalez (Wilfredo) 2015 NY Slip Op 50536(U) Decided on April 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570237/12

The People of the State of New York, Respondent,

against

Wilfredo Gonzalez, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James M. Burke, J.), rendered January 23, 2012, convicting him, after a jury trial, of forcible touching and sexual abuse in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (James M. Burke, J.), rendered January 23, 2012, affirmed.

The verdict convicting defendant of forcible touching (see Penal Law § 130.52) and third degree sexual abuse (see Penal Law § 130.55), was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]). There is no basis for disturbing the jury's determination concerning credibility. The credited testimony established that two plain-clothes police officers, after initially witnessing defendant engage in a pattern of "grinding" behavior directed against female subway riders, observed defendant furtively position himself behind the victim in a crowded subway car, bend his knees until his pelvis was even with the victim's buttocks, and then thrust his groin against the victim, using the motion of the train to move back and forth. Defendant was arrested shortly after the incident, whereupon the officers noted that he had an erection and a wet stain on the groin area of his sweat pants.

Defendant's Sixth Amendment right of confrontation was not violated when a criminalist from the Office of Chief Medical Examiner ("OCME") testified that the substance on defendant's pants was semen. Although the criminalist in question based his opinion upon raw data that was generated by another (nontestifying) analyst at OCME, a review of the record makes clear that the testifying criminalist drew his own scientific conclusions from the data, and was subject to cross examination regarding the basis for his conclusions. Thus, the witness did not merely provide surrogate testimony that failed to satisfy the Confrontation Clause (see People v Brown, 13 NY3d 332 [2009]; People v Raucci, 109 AD3d 109, 121-122 [2013], lv denied 22 NY3d 1158 [2014]; People v Rios, 102 AD3d 473, 475 [2013], lv denied 20 NY3d 1103 [2013]; People v Vargas, 99 AD3d 481 [2012], lv denied 21 NY3d 1011 [2013]). Nor was defendant's right to confrontation violated by the admission into evidence of the redacted OCME file, which included only the raw data. Contrary to defendant's claim, this data was not testimonial in nature (see [*2]People v Fucito, 108 AD3d 777 [2013], lv denied 22 NY3d 955 [2013]). In any event, any alleged error in receiving the aforementioned evidence was harmless in light of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 NY2d 230 [1975]).

The court properly exercised its discretion in denying, without a hearing, defendant's CPL 330.30(2) motion to set aside the verdict based on juror misconduct. The posttrial statement of a juror complaining of coercion by another juror raises no question of outside influence, but, rather, seeks to impeach the verdict by delving into the tenor of the jury's deliberative process (see People v Karen, 17 AD3d 865 [2005], lv denied 5 NY3d 764 [2005]). Since the juror in question confirmed his verdict upon polling of the jury, he cannot now be permitted to impugn the finality and integrity of the verdict by belated claims of coercion (see People v Goode, 270 AD2d 144 [2000], lv denied 95 NY2d 835 [2000]; People v Redd, 164 AD2d 34 [1990]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: April 16, 2015