People v. Mathews

227 A.D.2d 954, 643 N.Y.S.2d 851, 1996 N.Y. App. Div. LEXIS 6882

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 31, 1996
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of rape in the first degree, two counts of sexual abuse in the first degree and endangering the welfare of a child. We reject defendant’s contention that County Court improperly limited cross-examination of a prosecution witness regarding sexual activity between the complainant, age 10, and individuals other than defendant. That evidence is irrelevant to the issue whether defendant had sexual intercourse with the complainant and is not otherwise admissible under CPL 60.42 (see, People v Gag-non, 150 AD2d 918, 919, affd 75 NY2d 736; People v Boyd, 122 AD2d 273, 275).

Contrary to defendant’s contention, the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). Defendant further contends that the prosecutor improperly commented during his opening statement on defendant’s pre-arrest silence. That issue is unpreserved for our review (see, CPL 470.05 [2]; People v Johnson, 110 AD2d 1057, lv denied 66 NY2d 615), and we decline to exercise our power to address it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). We further conclude that the court did not abuse its discretion in sentencing defendant as a persistent felony offender (see, Penal Law § 70.10) and that the sentence imposed is neither unduly harsh nor severe (see, CPL 470.15 [6] [b]). (Appeal from Judgment of Wayne County Court, Sirkin, J. — Rape, 1st Degree.) Present — Green, J. P., Pine, Law-ton, Balio and Boehm, JJ.