People v. Dutcher

Appellate Division of the Supreme Court of New York

People v. Dutcher

192 A.D.2d 1093, 598 N.Y.S.2d 746, 1993 N.Y. App. Div. LEXIS 4107

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 14, 1993

StatusPublished

Cited by2 cases

This text of 192 A.D.2d 1093 (People v. Dutcher) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Dutcher, 192 A.D.2d 1093, 598 N.Y.S.2d 746, 1993 N.Y. App. Div. LEXIS 4107 (N.Y. Ct. App. 1993).

Pincite

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant’s conviction of sexual abuse in the first degree (Penal Law § 130.65 [3]) is supported by legally sufficient evidence and the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495; People v Watson, 171 AD2d 826, 827, lv denied 78 NY2d 1015). The trial court did not abuse its discretion either in its Sandoval ruling (see, People v Zillinger, 179 AD2d 382, lv denied 79 NY2d 955; People v Stringfellow, 176 AD2d 447, 448, lv denied 79 NY2d 864; People v Ortiz, 156 AD2d 197, 198, lv denied 76 NY2d 740) or in permitting the 10-year-old complainant to be sworn as a witness (see, People v Schultz, 168 AD2d 468; People v Fernandez, 138 AD2d 733, 734, appeal withdrawn 72 NY2d 858).

By failing to object to its admission, defendant has not preserved for our review his contention that the complainant’s mother gave improper bolstering testimony about the details of the alleged sexual abuse (see, CPL 470.05 [2]; People v Larmond, 139 AD2d 668, 670, lv denied 72 NY2d 862). We decline to review that issue in the interest of justice (see, CPL 470.15 [6] [a]).

Finally, we are obliged to comment on the failure of the District Attorney to file a brief in opposition to defendant’s [1094]*1094arguments and in support of the judgment of conviction. Such failure is appropriate only when the appeal is from a judgment that the District Attorney concedes should be reversed (see, People v Herman, 187 AD2d 1027; People v Pacella, 47 AD2d 711). (Appeal from Judgment of Steuben County Court, Scudder, J. — Sexual Abuse, 1st Degree.) Present — Denman, P. J., Pine, Lawton, Doerr and Davis, JJ.

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—Judgment unanimously affirmed. Memorandum: Defendant’s conviction of sexual abuse in the first degree (Penal Law § 130.65 [3]) is supported by legally sufficient evidence and the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495; People v Watson, 171 AD2d 826, 827, lv denied 78 NY2d 1015). The trial court did not abuse its discretion either in its Sandoval ruling (see, People v Zillinger, 179 AD2d 382, lv denied 79 NY2d 955; People v Stringfellow, 176 AD2d 447, 448, lv denied 79 NY2d 864; People v Ortiz, 156 AD2d 197, 198, lv denied 76 NY2d 740) or in permitting the 10-year-old complainant to be sworn as a witness (see, People v Schultz, 168 AD2d 468; People v Fernandez, 138 AD2d 733, 734, appeal withdrawn 72 NY2d 858).

By failing to object to its admission, defendant has not preserved for our review his contention that the complainant’s mother gave improper bolstering testimony about the details of the alleged sexual abuse (see, CPL 470.05 [2]; People v Larmond, 139 AD2d 668, 670, lv denied 72 NY2d 862). We decline to review that issue in the interest of justice (see, CPL 470.15 [6] [a]).

Finally, we are obliged to comment on the failure of the District Attorney to file a brief in opposition to defendant’s [1094]*1094arguments and in support of the judgment of conviction. Such failure is appropriate only when the appeal is from a judgment that the District Attorney concedes should be reversed (see, People v Herman, 187 AD2d 1027; People v Pacella, 47 AD2d 711). (Appeal from Judgment of Steuben County Court, Scudder, J. — Sexual Abuse, 1st Degree.) Present — Denman, P. J., Pine, Lawton, Doerr and Davis, JJ.

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Bluebook (online)

192 A.D.2d 1093, 598 N.Y.S.2d 746, 1993 N.Y. App. Div. LEXIS 4107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dutcher-nyappdiv-1993.

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