People v. Moselle

151 A.D.2d 982, 542 N.Y.S.2d 425, 1989 N.Y. App. Div. LEXIS 8298

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 2, 1989
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: Each of defendant’s claims, raised on appeal from his convictions for first degree sodomy and first degree sexual abuse, lacks merit or was not preserved. The court’s charge was proper and adequate in all respects. The court did not unnecessarily restrict defense counsel’s cross-examination of the complainant and the court properly disallowed inquiry into the complainant’s other sexual conduct (see, CPL 60.42; People v Mandel, 48 NY2d 952, 953, cert denied and appeal dismissed 446 US 949, reh denied 448 US 908; People v Westfall, 95 AD2d 581, 583-585). Defendant’s claim that the verdict was repugnant was not preserved by timely objection and may not be considered on appeal (see, People v Alfaro, 66 NY2d 985, 987). In any event, the verdict was not repugnant. By perceiving a difference in the way complainant described the two incidents, the jury could have inferred that defendant subjected her to sexual contact but not deviate sexual intercourse on April 21, 1982. The court properly denied defendant’s posttrial motion to vacate the judgment on the ground of newly discovered evidence because defendant did not establish the probative value of such evidence (CPL 330.30 [3]; 440.10 [1] [g]; People v Salemi, 309 NY 208, cert denied 350 US 950; People v Rivera, 108 AD2d 829, 830). (Appeal from judgment of Jefferson County Court, Parker, J. — sexual abuse, first degree; sodomy, first degree.) Present — Dillon, P. J., Denman, Green, Pine, and Balio, JJ.