Lynn W.L. Fahey, New York, N.Y. (John B. Latella and Denise A. Corsí of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Claibourne Henry of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered November 19, 2013, convicting him of sexual abuse in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence supporting his conviction is unpreserved for appellate review (see CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). Contrary to the defendant's contention, the fact that the jury acquitted him of other charges does not warrant a different conclusion (see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 ).
The Supreme Court providently exercised its discretion in permitting the prosecution to elicit evidence that approximately one year before the charged crimes, the defendant exposed his penis to the complainant. This evidence provided relevant background information on the nature of the defendant's relationship with the complainant, and the probative value of the evidence outweighed any prejudice to the defendant (see People v. Leeson, 12 N.Y.3d 823, 826–827, 880 N.Y.S.2d 895, 908 N.E.2d 885 ; People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ; People v. Maxey, 129 A.D.3d 1664, 14 N.Y.S.3d 845 ; People v. Leonard, 129 A.D.3d 1592, 1595, 12 N.Y.S.3d 446, lv. granted 26 N.Y.3d 1090, 23 N.Y.S.3d 646, 44 N.E.3d 944 ; People v. Kamp, 129 A.D.3d 1339, 1340, 14 N.Y.S.3d 163 ; People v. Washington, 122 A.D.3d 1406, 1408, 997 N.Y.S.2d 194 ; People v. Nash, 87 A.D.3d 757, 758–759, 928 N.Y.S.2d 611 ). Moreover, the court's instruction to the jury regarding use of this evidence limited any potential prejudice to the defendant (see People v. Gopaul, 112 A.D.3d 964, 965, 977 N.Y.S.2d 366 ; People v. Khan, 88 A.D.3d 1014, 1015, 931 N.Y.S.2d 393 ).
Finally, the defendant's contention that the Supreme Court improperly modified its initial Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) is unpreserved for appellate review. In any event, the contention is without merit.