| People v Bones |
| 2008 NY Slip Op 03788 [50 AD3d 1527] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Corey Bones,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Elizabeth Clifford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedApril 25, 2003. The judgment convicted defendant, upon a jury verdict, of rape in the first degreeand rape in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of rape in thefirst degree (Penal Law § 130.35 [2]) and rape in the second degree (§ 130.30 [1]),defendant contends that County Court erred in refusing to allow him to elicit testimony that thevictim was not sexually active prior to the incident. We reject that contention. The court properlydetermined that CPL 60.42, which concerns the admissibility of evidence of a victim's pastsexual activity, also concerns the admissibility of evidence of the absence of sexual activity onthe part of the victim (see generally People v Williams, 81 NY2d 303, 311 [1993];People v Nemie, 87 Cal App 3d 926, 929, 151 Cal Rptr 32, 34 [1978]). Defendant'scontention that the verdict is against the weight of the evidence also lacks merit (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). The jury was entitled to credit the testimonyof the victim and her aunt, and we accord great deference to the jury's "opportunity to view thewitnesses, hear the testimony and observe demeanor" (id.).
Defendant further contends that he was deprived of a fair trial based on prosecutorialmisconduct during summation. Defendant failed to object to several of the allegedly impropercomments and thus failed to preserve for our review his contention with respect to thosecomments (see People v Hess, 234 AD2d 925 [1996], lv denied 90 NY2d 1011[1997]), and we decline to exercise our power to review his contention with respect thereto as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We note inaddition that the court "took appropriate steps to dilute [the] effect" of the prosecutor's commentsconcerning facts that were not in evidence (People v Curley, 159 AD2d 969, 970 [1990],lv denied 76 NY2d 733 [1990]). The remaining comments to which defendant objectedwere "a fair response to defense counsel's summation and did not exceed the bounds of legitimateadvocacy" (People v Melendez, 11AD3d 983, 984 [2004], lv denied 4 NY3d 888 [2005]; see also People vArce, 42 NY2d 179, 190 [1977]).
The court did not abuse its discretion in denying defendant's request for an adjournmentbecause of the pregnancy of the victim and another prosecution witness. "The court's exercise of[*2]discretion in denying a request for an adjournment will not beoverturned absent a showing of prejudice" (People v Arroyo, 161 AD2d 1127, 1127[1990], lv denied 76 NY2d 852 [1990]), and defendant has failed to make the requisiteshowing of prejudice. We reject defendant's further contention that the photo array was undulysuggestive. The photo array did not "draw[ ] the viewer's attention so as to indicate that the policeha[d] selected a particular individual" (People v Parker, 257 AD2d 693, 694 [1999],lv denied 93 NY2d 1024 [1999]). Defendant failed to preserve for our review hiscontention that the court's Sandoval ruling constituted an abuse of discretion (see People v O'Connor, 19 AD3d1154, 1155 [2005], lv denied 5 NY3d 831 [2005]), and we decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). We have considered defendant's remaining contention and conclude that itis without merit. Present—Hurlbutt, J.P., Martoche, Fahey, Green and Gorski, JJ.