People v. Hernandez

185 A.D.2d 147, 585 N.Y.S.2d 436, 1992 N.Y. App. Div. LEXIS 8753

Opinion

—Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered November 4, 1987, which convicted defendant, after a jury trial, of six counts of sodomy in the first degree, two counts of sodomy in the second degree and one count each of attempted sodomy in the first and second degrees and sexual abuse in the first degree and, upon his pleas of guilty, of attempted robbery in the first degree and a violation of probation and sentenced him to concurrent indeterminate terms of imprisonment, ranging from one to three years on the violation of probation and the sexual abuse convictions to eight and one-third to twenty-five years on each of the convictions for sodomy in the first degree, unanimously affirmed.

The evidence of defendant’s guilt of these crimes committed against five boys, aged eleven to fifteen, whom he persuaded to run away from home and join him in a makeshift shack in the woods near Pelham Bay, was strong and convincing and is not contested on appeal. Nevertheless, the trial prosecutor, in summation, found it necessary to misstate or mischaracterize the trial testimony; make himself an unsworn medical expert; improperly express his personal opinion regarding the victims’ ability to recollect details of the crimes committed a year earlier; and, to ask, again improperly, the jury to express their opinion of defendant’s conduct by their verdict.

While we deplore such excesses in the strongest possible terms and ask that prosecutors be trained and admonished to refrain from such unnecessary conduct, the misconduct here was not so persistent and egregious as to warrant reversal of the convictions in the interests of justice.

We have considered defendant’s other points and find them without merit. Concur—Rosenberger, J. P., Ellerin, Kupferman, Ross and Asch, JJ.