People v. Denison

300 A.D.2d 1060, 751 N.Y.S.2d 913

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 2002
• Status: Published

Opinion

—Appeal from a judgment of Oneida County Court (Dwyer, J.), entered August 25, 2000, convicting defendant after a jury trial of, inter alia, sexual abuse in the first degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of two counts of sexual abuse in the first degree (Penal Law former § 130.65 [3]) and one count of endangering the welfare of a child (§ 260.10 [1]). Defendant failed to preserve for our review his contention that the expert testimony of the victim’s examining physician was improperly received in evidence (see CPL 470.05 [2]; People v Walker, 286 AD2d 945, 946, lv denied 98 NY2d 641), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15 [6] [a]). Defendant also failed to preserve for our review his contention that the prosecutor improperly cross-examined him with regard to his refusal to take a voice stress test (see 470.05 [2]). Defense counsel not only failed to object to the prosecutor’s questions, but also opened the door to those questions during defendant’s direct examination (see People v Michaud, 248 AD2d 823, 824, lv denied 91 NY2d 1010; cf. People v Uriah, 261 AD2d 848), and thus we likewise decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15 [6] [a]). The sentence is not unduly harsh or severe. Present — Green, J.P., Wisner, Scudder, Kehoe and Gorski, JJ.