| People v Berry |
| 2007 NY Slip Op 07170 [43 AD3d 1365] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Mark Berry,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Frances A. Affronti, J.),rendered July 1, 2004. The judgment convicted defendant, upon a jury verdict, of course ofsexual conduct against a child in the first degree, sodomy in the second degree (two counts) andattempted rape in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, oftwo counts of sodomy in the second degree (Penal Law former § 130.45), and one counteach of course of sexual conduct against a child in the first degree (former § 130.75 [a])and attempted rape in the second degree (§ 110.00, former § 130.30). Defendantcontends that Supreme Court erred in denying his challenge for cause with respect to aprospective juror who had indicated that she had been the victim of sexual abuse. Defendantfailed to preserve his contention for our review, however, because the record establishes that henever challenged that prospective juror for cause (see CPL 470.05 [2]). Rather, hischallenge for cause concerned another prospective juror with a similar background and, becausethat prospective juror "gave the requisite unequivocal assurance of impartiality," the courtproperly exercised its discretion in denying defendant's challenge for cause with respect to her(People v Nowlin, 297 AD2d 554, 555 [2002], lv denied 98 NY2d 770 [2002];see People v Chambers, 97 NY2d 417, 419 [2002]). We reject the further contention ofdefendant that the court erred in denying his challenge for cause with respect to a prospectivejuror who indicated that she did not understand the English language very well. That prospectivejuror stated that she had lived in the United States for 48 or 49 years, and the record establishesthat her "ability to communicate in the English language was sufficient" (People vChohan, 254 AD2d 124, 124 [1998], lv denied 92 NY2d 1030; see generallyPeople v Guzman, 76 NY2d 1, 5 [1990]).
Defendant further contends that the court erred in refusing to allow a witness to testify withrespect to a statement made by one of the victims. Defendant contends for the first time onappeal that the statement would have established that a person other than defendant had subjectedthat victim to sexual abuse. At trial, however, defendant contended that the statement was [*2]admissible because it concerned the victim's complaint of abuse byanother person that occurred prior to, or in addition to, the abuse by defendant and was relevantin establishing whether there was a reason for the delay of the victim in reporting defendant'sabuse of her. Because defendant's "offer of proof was insufficient to alert the trial court to therelevance of the testimony," i.e., that defendant allegedly was not the perpetrator of the abuse, weconclude that the court's refusal to allow the witness to testify with respect to the statement inquestion does not constitute reversible error (People v Arroyo, 77 NY2d 947, 948 [1991],rearg denied 78 NY2d 952 [1991]). Finally, the sentence is not unduly harsh or severe.Present—Scudder, P.J., Hurlbutt, Gorski, Centra and Green, JJ.