| People v Comerford |
| 2010 NY Slip Op 01075 [70 AD3d 1305] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v WilliamComerford, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.),rendered April 20, 2009. The judgment convicted defendant, upon a jury verdict, of rape in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed and thematter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 460.50 (5).
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofrape in the third degree (Penal Law § 130.25 [3]). Defendant failed to preserve for ourreview his contention that there was a Rosario violation because the People did notadequately identify or label a statement made by a prosecution witness (see People v Bennett, 52 AD3d1185, 1186-1187 [2008], lv denied 11 NY3d 734 [2008]; People v Powell,234 AD2d 905 [1996], lv denied 89 NY2d 1098 [1997]) and, in any event, thatcontention lacks merit. Defendant also failed to preserve for our review his contention thatSupreme Court erred in allowing the People to present rebuttal testimony inasmuch as defendantfailed to object to that proffered testimony at trial (see People v Peterkin, 12 AD3d 1026, 1028 [2004], lvdenied 4 NY3d 766 [2005]; People v Jones, 254 AD2d 780 [1998], lv denied92 NY2d 1050 [1999]). In any event, the rebuttal testimony was relevant to the issues of consentand defendant's consciousness of guilt, and thus it was not limited to " 'collateral mattersinquired into solely to affect credibility' " (People v Pavao, 59 NY2d 282, 288 [1983]).
We reject the contention of defendant that the court abused its discretion in refusing topermit him to re-call a witness after the close of proof. Defendant previously had been afforded afull and fair opportunity to cross-examine the witness concerning the victim's statements,emotional state and physical appearance after the rape but failed to avail himself of thatopportunity (see People v Adeyemi,32 AD3d 755 [2006], lv denied 7 NY3d 865 [2006]; People v Wegman, 2 AD3d 1333,1335 [2003], lv denied 2 NY3d 747 [2004]; People v Svanberg, 293 AD2d 555[2002], lv denied 98 NY2d 713 [2002]).
Defendant further contends that the court erred in allowing the People to bolster the victim'stestimony through the testimony of three other witnesses. Defendant failed to object to [*2]the testimony of two of those witnesses, and thus his contentionwith respect to those two witnesses is not preserved for our review (see People v Burnett,306 AD2d 947, 948 [2003]). With respect to the third witness in question, defendant's objectionto his testimony on the grounds of hearsay and lack of foundation was insufficient to preserve hiscontention with respect to bolstering for our review (see People v West, 56 NY2d 662[1982]; People v Smith, 24 AD3d1253 [2005], lv denied 6 NY3d 818 [2006]; People v Jacque, 2 AD3d 1362 [2003], lv denied 2 NY3d741 [2004]). In any event, defendant's contention lacks merit. The testimony of one of thewitnesses in question did not concern a prior statement of the victim, and the testimony of theother two witnesses fell within various exceptions to the hearsay rule and thus did not constituteimproper bolstering (see generally People v Buie, 86 NY2d 501, 510 [1995]; People v Stevens, 57 AD3d 1515[2008], lv denied 12 NY3d 822 [2009]). Finally, contrary to defendant's contention, weconclude that the court's evidentiary rulings were not inconsistent. Present—Scudder, P.J.,Peradotto, Carni, Green and Gorski, JJ.