People v. Traore

23 A.D.3d 267, 803 N.Y.S.2d 566

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 2005
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Michael R. Ambrecht, J.), rendered January 7, 2004, convicting defendant, after a jury trial, of three counts of rape in the third degree and three counts of sodomy in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 2 to 4 years, unanimously affirmed.

During his cross-examination of the victim, defendant opened the door to evidence of defendant’s explanation to the victim as to why he had not attended her party (see People v Torre, 42 NY2d 1036 [1977]). The explanation, that he had been driving with friends and had been “stopped,” did not constitute evidence of an uncharged crime (see People v Flores, 210 AD2d 1 [1994], lv denied 84 NY2d 1031 [1995]). Moreover, the nature of the explanation was relevant to a credibility issue that defendant developed during cross-examination.

To the extent that a portion of an officer’s testimony concerning his investigation of the crime could be viewed as lay opinion on the victim’s credibility, we find the error to be harmless (see People v Crimmins, 36 NY2d 230 [1975]).

The challenged portions of the People’s summation constituted fair comment on the evidence (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]; People v D’Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]). Defendant placed the victim’s credibility at issue throughout the trial, including defendant’s summation, and the People’s responsive arguments did not constitute vouching and were not inflammatory (People v Gonzalez, 298 AD2d 133 [2002], lv denied 99 NY2d 614 [2003]). Concur—Tom, J.P., Marlow, Ellerin, Sweeny and Catterson, JJ.