| People v Gross |
| 2010 NY Slip Op 09661 [79 AD3d 1652] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Gordon Gross, Appellant. (Appeal No. 1.) |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedApril 1, 2009. The judgment convicted defendant, upon a jury verdict, of predatory sexual assaultagainst a child, rape in the first degree, attempted sexual abuse in the first degree andendangering the welfare of a child (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of, interalia, predatory sexual assault against a child (Penal Law § 130.96), rape in the first degree(§ 130.35 [1]), and attempted sexual abuse in the first degree (§§ 110.00,130.65 [3]). Contrary to the contention of defendant, County Court did not abuse its discretion indenying his motion to present surrebuttal evidence, inasmuch as the proposed evidence wouldhave been "cumulative to, and duplicative of, evidence already presented on defendant's directcase" (People v Harris, 98 NY2d 452, 490 [2002]; see generally CPL 260.30 [7]).We also reject the contention of defendant that the court abused its discretion in denying hismotion for a mistrial (see generally People v Ortiz, 54 NY2d 288, 292 [1981]; Peoplev Samuels, 251 AD2d 1038 [1998], lv denied 92 NY2d 905 [1998]). Although thecourt erred in permitting two witnesses to refer to conversations that they each had with thevictim about defendant because such testimony violated the court's pretrial ruling excludingprompt outcry testimony (see generallyPeople v Workman, 56 AD3d 1155, 1157 [2008], lv denied 12 NY3d 789[2009]), we conclude under the circumstances of this case that the court's curative instructionwith respect to that testimony was sufficient to alleviate any prejudice to defendant (seegenerally People v Young, 48 NY2d 995 [1980], rearg dismissed 60 NY2d 644[1983]; People v Hawkes, 39 AD3d1209, 1210 [2007], lv denied 9 NY3d 845 [2007]). Viewing the evidence in light ofthe elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), and accordinggreat deference to the jury's resolution of credibility issues (see generally People vBleakley, 69 NY2d 490, 495 [1987]), we conclude that the verdict is not against the weightof the evidence (see generally id.). We further conclude that the sentence is not undulyharsh or severe. We have reviewed defendant's remaining contentions and conclude that they arewithout merit. Present—Scudder, P.J., Martoche, Green, Pine and Gorski, JJ.