People v. Tonge

253 A.D.2d 360, 678 N.Y.S.2d 41, 1998 N.Y. App. Div. LEXIS 8819

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 6, 1998
• Status: Published

Opinions

—Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered September 5, 1995, convicting defendant, after a jury trial, of four counts of rape in the first degree and two counts of endangering the welfare of a child, and sentencing him, respectively, to four terms of 4 to 12 years and two terms of 1 year, all to run concurrently, affirmed.

Defendant’s challenges to the prosecutor’s summation remarks are unpreserved for failure to object or to specify the basis for objection and we decline to review them in the interest of justice. Were we to review them, we would conclude that any error was harmless. The infant victim gave explicit and detailed descriptions of the sexual acts perpetrated upon her. Her testimony was credible and indicated a knowledge of sexual activity not normally possessed by a seven year old.

We agree with the dissenters that certain of the prosecutor’s remarks during summation went beyond the bounds of fair comment on the evidence (see, People v Aviles, 176 AD2d 584, 585). However, while some of her statements “would be better left unsaid, there was no obdurate pattern of inflammatory remarks or of egregious and pervasive prosecutorial misconduct, warranting a new trial” (People v Gonzalez, 249 AD2d 24, 25, citing People v D'Alessandro, 184 AD2d 114, lv denied 81 NY2d 884). In the context of the entire trial, it is our considered opinion that the remarks were harmless error (People v Galloway, 54 NY2d 396, 401). Concur — Milonas, J. P., Nardelli and Rubin, JJ.