People v. Guido

198 A.D.2d 809, 604 N.Y.S.2d 396, 1993 N.Y. App. Div. LEXIS 11416

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1993
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of rape in the first degree, rape in the second degree, sexual abuse in the second degree, unlawful imprisonment in the second degree, and endangering the welfare of a child. We reject his argument that the court erred in denying his motion to suppress the victim’s in-court identification. We conclude that the photographs in the photo array are comparable, and that the identification procedure was not impermissibly suggestive (see generally, People v Rahming, 26 NY2d 411). Defendant’s contentions that the court’s charge on identification was improper and that the court erred in refusing to permit defendant to cross-examine the laboratory technician with respect to a hair sample are unpreserved and we decline to reach them in the interest of justice. Defendant’s sentence is neither harsh nor excessive, nor is the verdict against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). We do not consider defendant’s contention, made for the first time on appeal, that the court erred in permitting proof of flight because such proof forced him to testify that he fled for fear that his prior conviction of a sex offense would make him a suspect. We also decline to consider defendant’s general contention that the court’s charge on flight was inadequate; defendant fails to specify in what respect it was inadequate. (Appeal from Judgment of Herkimer County Court, Bergin, J. — Rape, 1st Degree.) Present— Pine, J. P., Lawton, Fallon, Doerr and Davis, JJ.