People v Parker-El (Dwayne)

[*1] People v Parker-El (Dwayne) 2021 NY Slip Op 50933(U) Decided on October 5, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2021
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Edmead, P.J., Brigantti, Hagler, JJ.
570962/14

The People of the State of New York, Respondent,

against

Dwayne Parker-El, Defendant-Appellant.

In consolidated criminal proceedings, defendant appeals from two judgments of the Criminal Court of the City of New York, Bronx County (Steven J. Hornstein, J.), each rendered October 30, 2014, after a nonjury trial, convicting him of attempted forcible touching, attempted sexual abuse in the second degree, attempted endangering the welfare of a child (two counts) and public lewdness (two counts), and imposing sentence.

Per Curiam.

Judgments of conviction (Steven J. Hornstein, J.), rendered October 30, 2014, affirmed.

The verdicts convicting defendant of attempted forcible touching (Penal Law §§ 110, 130.52[1]), attempted sexual abuse in the second degree (Penal Law §§ 110, 130.60[2]), two counts of attempted endangering the welfare of a child (Penal Law §§ 110, 260.10[1]) and two counts of public lewdness (Penal Law § 245.00[a]) were not against the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]), which included photographic images from surveillance video showing defendant, on two separate occasions, removing his penis from his pants and exposing it to the teen victims in a residential elevator, and then touching the vagina of one of the victims as she fled. The credibility issues raised by defendant, including the inconsistencies in the victims' testimony, were properly placed before the trier of fact and we find no reason to disturb the court's determination to credit the victims' testimony rather than defendant's testimony.

Defendant's contentions regarding the alleged Rosario violations are largely unpreserved, since defendant did not seek any further relief with respect to the Rosario violations after the Court granted an adverse inference charge (see People v Alvarez, 198 AD2d 171 [1993], lv denied 83 NY2d 802 [1994]), and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits. The adverse inference sanction was sufficient, since there was no showing of bad faith on the part of the prosecution and no showing of prejudice (see People v Johnson, 291 AD2d 265 [2002], lv denied 98 NY2d 698 [2002]). In any event, even assuming that the trial court erred in declining to impose a preclusion sanction, we [*2]would find the error to be harmless given the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Suero, 159 AD3d 656 [2018], lv denied 31 NY3d 1122 [2018]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 5, 2021