People v. Fabian

Appellate Division of the Supreme Court of New York

People v. Fabian

213 A.D.2d 298, 625 N.Y.S.2d 4, 1995 N.Y. App. Div. LEXIS 3072

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

DecidedMarch 23, 1995

StatusPublished

Cited by16 cases

This text of 213 A.D.2d 298 (People v. Fabian) 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. Fabian, 213 A.D.2d 298, 625 N.Y.S.2d 4, 1995 N.Y. App. Div. LEXIS 3072 (N.Y. Ct. App. 1995).

Pincite

Opinion

—Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered March 27, 1992, convicting defendant, after a jury trial, of attempted sodomy in the first degree and sexual abuse in the first degree, and sentencing him to concurrent terms of 2V2 to IV2 years and 1 to 3 years, respectively, unanimously affirmed.

The conduct of the court and prosecutor during defendant’s opening statement does not require a new trial. While there is a potential burden-shifting effect to an admonition, delivered [299]*299in the presence of the jury, that a defense opening statement be confined to matters that the defense intends to prove (People v Robinson, 202 AD2d 225, lv denied 84 NY2d 871), in this case, the remarks of the court and prosecutor were brief, isolated, and innocuous in context (see, People v Martinez, 207 AD2d 284, lv denied 84 NY2d 908). Furthermore, the court did not unduly restrict defendant’s opening statement, since it expressly gave counsel the option of making precisely the kind of opening statement he had requested to make, to wit, simply restating the People’s burden of proof and requesting an acquittal, and counsel chose that option without protest.

Defendant’s claim that the court erred in receiving evidence that the victim made "outcries” to various persons, seriatim, is unpreserved and we decline to review it in the interests of justice. Defendant made no objection to the victim’s listing of all her various outcries, nor to the arresting officer’s testimony about the last of the series of outcries. Defendant made merely generalized objections (see, People v Rodriguez, 158 AD2d 376, 377, lv denied 75 NY2d 969) to outcry testimony by the victim’s relatives, which merely confirmed facts which had already been disclosed to the jury without objection (see, People v Johnson, 57 NY2d 969, 971). In any event, the rule that a prompt outcry must be made " 'at the first suitable opportunity’ ” (People v McDaniel, 81 NY2d 10, 17) does not necessarily undermine the admissibility of seriatim outcries to different listeners provided that each outcry qualifies as "prompt” under its own circumstances (compare, People v Guerra, 174 AD2d 502, lv denied 78 NY2d 1076, with People v Badia, 163 AD2d 4, 7-8).

Defendant’s remaining challenges to alleged hearsay testimony are unpreserved and without merit in view of defendant’s attack upon aspects of complainant’s testimony as a recent fabrication. Concur—Rosenberger, J. P., Rubin, Ross, Nardelli and Williams, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered March 27, 1992, convicting defendant, after a jury trial, of attempted sodomy in the first degree and sexual abuse in the first degree, and sentencing him to concurrent terms of 2V2 to IV2 years and 1 to 3 years, respectively, unanimously affirmed.

The conduct of the court and prosecutor during defendant’s opening statement does not require a new trial. While there is a potential burden-shifting effect to an admonition, delivered [299]*299in the presence of the jury, that a defense opening statement be confined to matters that the defense intends to prove (People v Robinson, 202 AD2d 225, lv denied 84 NY2d 871), in this case, the remarks of the court and prosecutor were brief, isolated, and innocuous in context (see, People v Martinez, 207 AD2d 284, lv denied 84 NY2d 908). Furthermore, the court did not unduly restrict defendant’s opening statement, since it expressly gave counsel the option of making precisely the kind of opening statement he had requested to make, to wit, simply restating the People’s burden of proof and requesting an acquittal, and counsel chose that option without protest.

Defendant’s claim that the court erred in receiving evidence that the victim made "outcries” to various persons, seriatim, is unpreserved and we decline to review it in the interests of justice. Defendant made no objection to the victim’s listing of all her various outcries, nor to the arresting officer’s testimony about the last of the series of outcries. Defendant made merely generalized objections (see, People v Rodriguez, 158 AD2d 376, 377, lv denied 75 NY2d 969) to outcry testimony by the victim’s relatives, which merely confirmed facts which had already been disclosed to the jury without objection (see, People v Johnson, 57 NY2d 969, 971). In any event, the rule that a prompt outcry must be made " 'at the first suitable opportunity’ ” (People v McDaniel, 81 NY2d 10, 17) does not necessarily undermine the admissibility of seriatim outcries to different listeners provided that each outcry qualifies as "prompt” under its own circumstances (compare, People v Guerra, 174 AD2d 502, lv denied 78 NY2d 1076, with People v Badia, 163 AD2d 4, 7-8).

Defendant’s remaining challenges to alleged hearsay testimony are unpreserved and without merit in view of defendant’s attack upon aspects of complainant’s testimony as a recent fabrication. Concur—Rosenberger, J. P., Rubin, Ross, Nardelli and Williams, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

213 A.D.2d 298, 625 N.Y.S.2d 4, 1995 N.Y. App. Div. LEXIS 3072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fabian-nyappdiv-1995.

Opinion

Related

Cite This Page — Counsel Stack