People v. Royster

209 A.D.2d 336, 619 N.Y.S.2d 9, 1994 N.Y. App. Div. LEXIS 11601

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1994
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (Elbert Hinkson, J.), rendered November 22, 1991, convicting defendant, after a non-jury trial, of burglary in the second degree and sexual abuse in the first degree, and sentencing him, as a second felony offender, to concurrent terms of IV2 to 15 years and 3Vi to 7 years, respectively, unanimously affirmed.

The hearing court properly denied defendant’s applications for a Wade hearing, on the grounds that the parties were known to each other for a period of approximately one and a half years, and that defendant was arrested after the complainant described him to the police and directed them to the apartment next to hers (see, People v Rodriguez, 79 NY2d 445, 450).

The record supports the hearing court’s determination that the arresting officer testified truthfully regarding defendant’s warrantless arrest in the hallway outside of his apartment, notwithstanding a defense witness’ testimony that the arrest actually occurred inside defendant’s apartment (see, People v Fonte, 159 AD2d 346, lv denied 76 NY2d 734).

The trial court appropriately exercised its discretion in denying defendant’s application for a subpoena to call the emergency room physician who had examined the complainant following the incident, on the ground that defendant failed to show that the medical report required explanation, or that the emergency room physician could offer evidence in support of defendant’s theory that the complainant had imagined the attack (see, People v Cronin, 60 NY2d 430, 433).

We note that defendant’s current claim that the trial court’s rulings deprived him of his constitutional right to cross-examine witnesses against him, not raised before the trial court, is unpreserved (People v Iannelli, 69 NY2d 684, 685, cert denied 482 US 914), and we decline interest of justice review.

We have considered defendant’s remaining contentions and find them to be without merit. Concur—Sullivan, J. P., Rosenberger, Ellerin, Kupferman and Williams, JJ.