New York Criminal Lawyer Blog
A Nassau Sex Crime Lawyer said that, this is an appeal by the defendant from a judgment of the County Court, Nassau County, rendered April 1, 1996, convicting him of attempted rape in the first degree and sex abuse in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.
The issue in this case is whether defendant is entitled to the suppression of his testimony.
Viewing the evidence in the light most favorable to the prosecution, the court finds that it was legally sufficient to establish the defendant’s criminal guilt of attempted rape in the first degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence. Viewing the evidence in the light most favorable to the petitioner, we find that it was legally sufficient to establish the appellant’s guilt beyond a reasonable doubt. The complainant’s hearing testimony was generally logical and consistent and sufficed to establish the appellant’s commission of acts which constituted the elements of the crime of sex abuse in the second degree (see, Penal Law § 130.60[2]. With respect to the appellant’s challenge to the credibility of the complainant’s testimony, we note that the resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses. “Since this case was tried before a court without a jury, the greatest respect must be accorded the determination of the hearing court in assessing the credibility of [the witnesses] and resolving disputed questions of fact.
We discern no basis in the record to disturb the Family Court’s determination that the complainant’s testimony was credible. Moreover, upon the exercise of our factual review power, we are satisfied that the finding of guilt was not against the weight of the credible evidence (see, CPL 470.15[5]. Domestic Violence was not charged.
With respect to the appellant’s contention that the trial court erred in permitting the use of leading and suggestive questions during the direct examination of the complainant, to the extent that that issue has been preserved for appellate review, we find it to be similarly unavailing. The complainant was a 13-year-old child who was the victim of a sex crime offense and who at times appeared reluctant to testify regarding the details of the incident. Thus, the court acted within its sound discretion in allowing the limited leading of the witness. The appellant’s related claim that the hearing court also engaged in improper questioning is without merit, as the record demonstrates that on those few occasions when the court made inquiry, “the court acted within acceptable limits in an effort to clarify confusing testimony as well as to facilitate the orderly and expeditious progress of the hearing.
We have considered the appellant’s remaining contention and find it to be without merit.
We are not persuaded by the defendant’s contention that the hearing court erred in denying suppression of the show up identification made by the complainant near the scene of the sex crime. While show up procedures are generally disfavored, they are permissible where, as in this case, they are employed in close spatial and temporal proximity to the commission of the sex crime for the purpose of securing a prompt and reliable identification. Additionally, there is no merit to the defendant’s claim that the complainant’s testimony was necessary for the prosecutor to establish a non-suggestive identification. The record demonstrates that the court was provided with the factual detail necessary to assess whether the identification procedure was unconstitutional.
The hearing court did not err in ruling that the defendant’s credibility could be impeached by a post-arrest statement he made that was suppressed as having been taken in violation of his Miranda rights. The court’s certification of the defendant as a sex offender pursuant to New York’s “Megan’s Law” (Correction Law § 168-d[1] ) is not reviewable on direct appeal from the judgment.
The defendant’s remaining contentions are either without merit or do not require reversal.
Accordingly, the court held that the judgment is affirmed.
If you are a victim of sex crime seek the representation of a Nassau Sex Crime Attorney and Nassau Criminal Attorney at Stephen Bilkis and Associates in order to prosecute your case. Call us.