People v. Reid

281 A.D.2d 986, 722 N.Y.S.2d 848, 2001 N.Y. App. Div. LEXIS 2796

Opinion

Judgment unanimously affirmed. Memorandum: Defendant was convicted following a jury trial of rape in the first degree (Penal Law § 130.35 [1]) and sexual abuse in the first degree (Penal Law § 130.65 [1]) in connection with an incident involving a former girlfriend. Defendant did not preserve for our review his contentions with respect to the testimony of the examining physician (see, CPL 470.05 [2]), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]).

Defendant further contends that he was denied a fair trial by alleged prosecutorial misconduct. We conclude that, although the prosecutor engaged in misconduct in seeking to impeach defendant by questioning him on cross-examination concerning his failure to support an out-of-wedlock child who was “on welfare” (see, Gutierrez v City of New York, 205 AD2d 425, 427), that misconduct did not deny defendant a fair trial (see, People v Caleb, 273 AD2d 881, 881-882, lv denied 95 NY2d 864). The other alleged instances of prosecutorial misconduct are not preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]).

Contrary to defendant’s further contention, the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). The victim’s testimony was not incredible as a matter of law (see, People v Bell, 234 AD2d 915, 915-916, lv denied 89 NY2d 1009), and the conflicting testimony raised issues of credibility for the jury to resolve (see, People v Lopez, 231 AD2d 934, 935). (Appeal from Judgment of Erie County Court, DiTullio, J. — Rape, 1st Degree.) Present — Pine, J. P., Wisner, Hurlbutt, Scudder and Kehoe, JJ.