People v. Halm

611 N.E.2d 281, 81 N.Y.2d 819, 595 N.Y.S.2d 380, 1993 N.Y. LEXIS 101

• Court: New York Court of Appeals
• Decided: February 23, 1993
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted on five counts of sodomy in the third degree and three counts of endangering the welfare of a child. The convictions followed testimony by four teenage boys that defendant had shown them pornographic films in his home, masturbated before them, solicited sex from them and engaged two of them in acts of sodomy. He was sentenced by Chemung County Court to five consecutive prison terms of lVs to 4 years.

Defendant has failed to show that remarks by the prosecutor during summation had "a decided tendency to prejudice the jury” (People v Ashwal, 39 NY2d 105, 110). The prosecutor’s reference to defendant’s failure to testify was followed by a curative instruction, and his portrayal of the complainants in the closing statement, when viewed in the context of the entire trial, fell within the latitude afforded to attorneys in advocating their cause (id., at 109, quoting Williams v Brooklyn El. R. R. Co., 126 NY 96, 102). Moreover, the prosecutor’s closing statement must be evaluated in light of the defense summation, which put into issue the complainants’ character and credibility and justified the People’s response.

Similarly, defendant’s claim that community sentiment and religious beliefs were inappropriately considered by the Judge in imposing sentence is not borne out by the record. The sentencing statement, read in context, was unobjectionable (compare, United States v Bakker, 925 F2d 728, 740-741).

Finally, we find no merit to defendant’s contention that the age of consent established by the Legislature is unconstitutional.

Defendant’s other arguments are without merit.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed in a memorandum.