| People v Rivers |
| 2011 NY Slip Op 02185 [82 AD3d 1623] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Natalie D.Rivers, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered March14, 2007. The judgment convicted defendant, upon a jury verdict, of course of sexual conductagainst a child in the second degree, sexual abuse in the second degree, criminal sexual act in thesecond degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of,inter alia, course of sexual conduct against a child in the second degree (Penal Law §130.80 [1] [b]) and sexual abuse in the second degree (§ 130.60 [2]). We reject defendant'scontention that County Court erred in admitting evidence of uncharged acts of physical abuse towhich the victim was subjected, as well as acts witnessed by her. Such evidence is admissible "'to explain the victim's failure to reveal the ongoing sexual assaults' " (People v Bennett, 52 AD3d 1185,1187 [2008], lv denied 11 NY3d 734 [2008]; see People v Bassett, 55 AD3d 1434, 1436 [2008], lvdenied 11 NY3d 922 [2009]). Contrary to defendant's contention, the court properly weighedthe probative value of the evidence of those uncharged acts against its potential for prejudice, asdemonstrated by the fact that the court admitted evidence of certain acts while precludingevidence of other acts (see generally People v Alvino, 71 NY2d 233, 241-242 [1987];People v Ventimiglia, 52 NY2d 350, 359-360 [1981]). In any event, we note that thecourt provided the jury with explicit limiting instructions on multiple occasions concerning theevidence of those uncharged acts, "thus minimizing any potential prejudice to defendant"(Bassett, 55 AD3d at 1436).
Defendant further contends that she was deprived of a fair trial based on numerous instancesof prosecutorial misconduct on summation. Defendant failed to preserve her contention for ourreview with respect to the majority of the alleged instances of prosecutorial misconduct (see People v Figgins, 72 AD3d1599, 1600 [2010], lv denied 15 NY3d 893; People v Brink, 57 AD3d 1484, 1486 [2008], lv denied 12NY3d 851 [2009]) and, in any event, her contention is without merit. Most of the prosecutor'scomments with which she takes issue "were fair response to defense counsel's summation"(Figgins, 72 AD3d at 1600) and, even assuming, arguendo, that some of the allegedinstances were improper, we conclude that "none was so egregious as to deny defendant a fairtrial" (People v Milczakowskyj, 73AD3d 1453, 1454 [2010], lv denied 15 NY3d 754 [2010]). Present—Scudder,P.J., Fahey, Carni, Green and Gorski, JJ.