| People v Simmons |
| 2013 NY Slip Op 03861 [106 AD3d 1115] |
| May 29, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Herbert Simmons, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County(McGann, J.), rendered October 28, 2010, convicting him of rape in the second degree(two counts), criminal sexual act in the second degree, and attempted rape in the seconddegree under indictment No. 125/10, after a nonjury trial, and imposing sentence, and (2)a judgment of the same court also rendered October 28, 2010, convicting him ofendangering the welfare of a child under indictment No. 2353/09, after a nonjury trial,and imposing sentence.
Ordered that the judgments are affirmed.
The defendant contends that he was denied his constitutional rights to present acomplete defense and confront witnesses because the trial court did not allow him tofully cross-examine the then-15-year-old victim about a prior sexual encounter with ateenaged boy, which allegedly provided her with a motive to fabricate her accusationsagainst the defendant. However, since the defendant did not assert a constitutional rightto introduce the excluded evidence at trial, his constitutional claims are unpreserved forappellate review (see People vOrtiz, 100 AD3d 419, 420 [2012]; People v Simonetta, 94 AD3d 1242, 1245 [2012]; People v Schafer, 81 AD3d1361, 1363 [2011]). In any event, the court properly limited inquiry into thecomplainant's past sexual history pursuant to the Rape Shield Law (see CPL60.42). Although CPL 60.42 (5) vests the trial court with the discretion to consider theadmission of evidence of a victim's sexual conduct "in the interests of justice" (see People v Halter, 19 NY3d1046, 1049 [2012]), here, the limited value in allowing detailed evidence of thecomplainant's prior sexual encounter to be adduced on cross-examination wasoutweighed by the complainant's statutory right to confidentiality and the prejudicialnature of the evidence (seePeople v Scott, 67 AD3d 1052, 1055 [2009], affd 16 NY3d 589 [2011];People v White, 261 AD2d 653, 655-656 [1999]; see also People vHalter, 19 NY3d at 1049). Moreover, the defendant's rights to present a defense andconfront witnesses were not unduly curtailed by the court's application of the RapeShield Law because he was permitted to develop evidence that there had been a priorsexual encounter between the complainant and the teenaged boy, and that this allegedlyprovided the complainant with a motive to fabricate her accusations (see People v Weinberg, 75AD3d 612, 613 [2010]; People v Russillo, 27 AD3d 493 [2006]).[*2]
The defendant's contention that the counts ofindictment No. 125/10 charging him with rape in the second degree, criminal sexual actin the second degree, and attempted rape in the second degree failed to provide him withfair notice of the dates of the charged crimes is also unpreserved for appellate review (see People v Irvine, 52 AD3d866, 867 [2008]; People vAlbanese, 45 AD3d 691, 692 [2007]; People v Case, 29 AD3d 706 [2006]). In any event, takinginto consideration all of the relevant circumstances, including the complainant's age atthe times of the commission of the crimes, the repetitive nature of the sexual abuse, andthe fact that time is not a material element of any of the crimes, the 30-day time periodsset forth in the subject counts provided the defendant with adequate notice (seePeople v Watt, 81 NY2d 772, 774 [1993]; People v Persaud, 98 AD3d 527, 528 [2012]; People v Ames, 96 AD3d867 [2012]; People vWeekes, 71 AD3d 1065 [2010]).
The defendant additionally failed to preserve for appellate review his claim that hewas deprived of a fair trial by certain comments made by the prosecutor on summationbecause he either failed to object to the challenged remarks, or failed to object on thespecific grounds raised on this appeal (see CPL 470.05 [2]; People v Romero, 7 NY3d911, 912 [2006]; People vCrosdale, 103 AD3d 749 [2013]). In any event, the challenged remarks werefair comment on the evidence, constituted a fair response to defense counsel'ssummation, or otherwise do not warrant reversal (see People v Halm, 81 NY2d819, 821 [1993]; People v Galloway, 54 NY2d 396, 401 [1981]; People v Morency, 104 AD3d877 [2013]; People vCrosdale, 103 AD3d 749 [2013]; People v Birot, 99 AD3d 933 [2012]; People v Torres, 96 AD3d881, 882 [2012]). Eng, P.J., Dillon, Dickerson and Chambers, JJ., concur.