People v Castro (Juan)

[*1] People v Castro (Juan) 2014 NY Slip Op 50150(U) Decided on February 7, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ
571147/2012.

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

against

Juan Castro, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Neil E. Ross, J.), rendered July 30, 2012, after a nonjury trial, convicting him of sexual abuse in the third degree and forcible touching, and imposing sentence.

Per Curiam.

Judgment of conviction (Neil E. Ross, J.), rendered July 30, 2012, affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the factfinder's determinations concerning credibility. The complainant's account of the sex offenses was believable and her delay in reporting the incident was adequately explained by the evidence.

The trial court properly denied defendant's belated request for a missing witness charge with respect to the complainant's downstairs neighbor (Toth), a potential witness who undisputedly was not present at the time of the incident. Defendant failed to establish that the uncalled witness was under the People's control or had any direct knowledge of the circumstances of the crime, much less information favorable to the prosecution (see People v Gonzalez, 68 NY2d 424, 427-428 [1986]; People v Riley, 57 AD3d 379, 380 [2008], lv denied 12 NY3d 820 [2009]; People v Paduano, 125 AD2d 715, 718-719 [1986], lv denied 70 NY2d 652 [1987]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 07, 2014