People v Vonancken (Heinz)
Annotate this CaseDecided on April 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2008-727 S CR.
The People of the State of New York, Respondent,
against
Heinz Vonancken, Appellant.
Appeal from a judgment of the District Court of Suffolk County, First District (Toni A.
Bean, J.), rendered April 3, 2008. The judgment convicted defendant, upon a jury verdict, of
endangering the welfare of a child.
ORDERED that the judgment of conviction is affirmed.
The People charged defendant with endangering the welfare of a child (Penal Law § 160.10 [1]), and defendant moved pretrial to dismiss the information for facial insufficiency, alleging the absence of nonhearsay facts of an evidentiary nature tending to establish that it was defendant who had committed the offense (see People v Casey, 95 NY2d 354, 365 [2000]). The District Court denied the motion, and defendant was convicted of the charge following a jury trial. Defendant appeals, arguing that the accusatory instrument was defective, that evidence of his prior bad acts was improperly admitted, that the court delivered an improper identification charge, and that the verdict was against the weight of the evidence. For the reasons that follow, the judgment of conviction is affirmed.
In order to be facially sufficient, an information must allege nonhearsay facts of an evidentiary nature establishing, if true, each element of the charged offense "and the defendant's commission thereof" (CPL 100.15 [3]; 100.40 [1] [a], [c]; see People v Kalin, 12 NY3d 225, 228-229 [2009]; People v Jones, 9 NY3d 259, 261 [2007]; People v Allen, 92 NY2d 378, 385 [1998]; People v Dumas, 68 NY2d 729, 731 [1986]). The factual allegations considered "within the four corners of the instrument itself [and] in [the] annexed supporting depositions" (People v Thomas, 4 NY3d 143, 146 [2005] [internal quotations marks and citation omitted]), construed in the light most favorable to the People (CPL 170.45; People v Jennings, 69 NY2d 103, 114 [1986]), and afforded the requisite "fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d at 360), lead logically to the conclusion that defendant was the person who [*2]allegedly held the mirror under a public bathroom stall to view the victim as he changed into a bathing suit.
As the testimony regarding the arresting officer's observation of defendant committing a similar offense upon another victim immediately before defendant's arrest was admitted without objection, any error in relation thereto is not preserved for appellate review (CPL 470.05 [2]). In any event, the testimony was properly admitted. The conduct observed was "inextricably interwoven with the crime charged" (People v Vails, 43 NY2d 364, 468 [1977]), in particular, the use of the mirror, which the victim identified as the mirror used to observe him (People v Mangarella, 190 AD2d 757 [1993]). The testimony tended to establish defendant's identity as the perpetrator (People v Jackson, 237 AD2d 620 [1997]; see also People v Rivera, 281 AD2d 702, 703 [2001]) and represented an "essential component[] of the res gestae" (People v Robinson, 200 AD2d 693, 694 [1994]), absent which the sequence of events from the accusation to the arrest would have remained less intelligible to the jury (id.).
We also find defendant's challenge to the weight of the evidence to support the conviction to be without merit. It is well settled that the credibility of witnesses is a question of fact, and the resolution of issues of credibility, as well as the weight to be accorded the evidence presented, is for the trier of fact, which had the opportunity to view the witnesses, hear the testimony and observe demeanor (see People v Romero, 7 NY3d 633 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). The determination of the trier of fact should be afforded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v Mateo, 2 NY3d 383, 410 [2004]). Here, the record supports the jury's implicit determination to credit the testimonies of the victim and his mother regarding the circumstances of the offense and of Officer Caupain's investigation of the complaint, which resulted in defendant's arrest. Thus, in the exercise of our factual review power, we find that the verdict was not against the weight of the evidence (CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]).
We have considered defendant's remaining claim of error and find it to be without merit (see People v Whalen, 59 NY2d 273, 279 [1983]; People v Tavarez, 55 AD3d 932 [2008]; People v Dorbilles, 266 AD2d 229, 230 [1999]). Accordingly, the judgment of conviction is affirmed.
Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: April 13, 2010
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