People v. Flores

162 A.D.2d 172, 556 N.Y.S.2d 304, 1990 N.Y. App. Div. LEXIS 7088

Opinion

Judgment, Supreme Court, Bronx County (William T. Martin, J.), rendered March 21, 1988, convicting defendant of two counts of rape in the first degree and one count of sexual abuse in the first degree, and sentencing defendant to two terms of 8 Vs to 25 years’ and one term of 2 Vs to 7 years’ imprisonment, respectively, all to run concurrently, unanimously affirmed.

Defendant, entrusted with the care of his 4 Vi-year-old cousin, raped and otherwise sexually abused the child. The crime was immediately discovered by the child’s mother and the child was taken to the hospital, where a physical examination revealed symptoms consistent with rape. The trial testimony of the complainant, together with medical testimony, overwhelmingly established defendant’s guilt. Under these circumstances, the isolated remark of the prosecutor in summation, referring to the defense as a "smokescreen”, hardly warrants a new trial, especially in view of the overwhelming evidence of defendant’s guilt.

We are unpersuaded that the sentence imposed was unduly harsh or severe. Taking into account, "among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction”, we perceive no abuse of discretion warranting reduction in sentence (People v Farrar, 52 NY2d 302, 305). Concur—Murphy, P. J., Ross, Rosenberger, Asch and Ellerin, JJ.