| People v Khan |
| 2011 NY Slip Op 07655 [88 AD3d 1014] |
| October 25, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AbuKhan, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Jill A.Gross-Marks of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.),rendered July 24, 2007, convicting him of rape in the first degree, course of sexual conductagainst a child in the second degree, endangering the welfare of a child, and sexual abuse in thesecond degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The Supreme Court providently exercised its discretion in permitting the prosecution to elicitevidence that the defendant, charged with sexually touching the younger-than-11-year-old victimfrom 1997 to 2000 while the family lived in Queens, and with one rape of the victim in Queensin November 2004, raped the victim on frequent occasions between 2001 and 2004 while thefamily lived in Florida. The evidence was properly admitted to demonstrate the defendant'spattern of escalating sexual conduct toward the victim during the period between the chargedcrimes, and as relevant background information to enable the jury to understand the defendant'srelationship with the victim and to place the events in question in a believable context,particularly since the defendant raised the issue of the victim's delayed disclosure of the chargedcriminal conduct (see People vLeeson, 12 NY3d 823, 826-827 [2009]; People v Haidara, 65 AD3d 974 [2009]; People v Cardona, 60 AD3d 493,493-494 [2009]; People vWorkman, 56 AD3d 1155, 1156-1157 [2008]; People v Rosario, 34 AD3d 370 [2006]). Moreover, the probativevalue and the need for the evidence outweighed any potential prejudice to the defendant,particularly in light of the Supreme Court's limiting instruction to the jury as to the proper use ofthe uncharged crimes evidence (see People v Cook, 93 NY2d 840, 841 [1999]; People v Holden, 82 AD3d 1007,1008 [2011]; People v Rock, 65AD3d 558, 559 [2009]; People vMelendez, 8 AD3d 680, 681 [2004]).
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in admitting into evidence two photographs depicting the victim at ages five and sevento illustrate the victim's age when the sexual contact allegedly began and to corroboratetestimony regarding the change in the victim's physical appearance (see People v Stevens,76 NY2d 833, 835-836 [1990]; People vSampson, 67 AD3d 1031, 1032 [2009]). The fact that there was other evidence availablewith respect to these matters did not require the exclusion of the photographs (see People vStevens, 76 [*2]NY2d at 835-836; People v Hamilton, 66 AD3d 921,922 [2009]). Dillon, J.P., Balkin, Eng and Cohen, JJ., concur.