| People v Williams |
| 2009 NY Slip Op 03269 [61 AD3d 1383] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert H.Williams, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.),rendered November 6, 2003. The judgment convicted defendant, upon a jury verdict, of courseof sexual conduct against a child in the first 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 course ofsexual conduct against a child in the first degree (Penal Law § 130.75 [former (a)]),defendant contends that he was denied his right to a fair trial because the prosecutor knowinglyelicited testimony from the victim that was false and misleading. Defendant failed to preservethat contention for our review (see People v Cooper, 219 AD2d 426, 433 [1996], affd90 NY2d 292 [1997]; People v Jordan, 181 AD2d 745, 746-747 [1992], lvdenied 80 NY2d 833 [1992]) and, in any event, that contention lacks merit. Although weagree with defendant that a prosecutor has a duty to correct trial testimony if he or she knowsthat it is false (see People v Savvides, 1 NY2d 554, 556-557 [1956]; People v Hendricks, 2 AD3d 1450[2003], lv denied 2 NY3d 762 [2004]), we conclude that the prosecutor here did not infact elicit false testimony from the victim. We reject the further contention of defendant thatSupreme Court erred in refusing to allow him to cross-examine the victim with respect to hersexual history pursuant to the Rape Shield Law (see CPL 60.42). " 'Evidence of thevictim's . . . sexual conduct did not fall within any of the exceptions set forth inCPL 60.42 (1) through (4)' " (People vWright, 37 AD3d 1142 [2007], lv denied 8 NY3d 951 [2007]), and we cannotsay that the court abused its discretion in refusing to apply the exception set forth in CPL 60.42(5) (see People v White, 261 AD2d 653, 655-656 [1999], lv denied 93 NY2d1029 [1999]). Present—Scudder, P.J., Peradotto, Carni, Green and Gorski, JJ.