Opinion
KA 02-01318
December 30, 2002.
Appeal from a judgment of Oneida County Court (Dwyer, J.), entered August 25, 2000, convicting defendant after a jury trial of, inter alia, sexual abuse in the first degree (two counts).
PETER J. DI GIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.
MICHAEL A. ARCURI, DISTRICT ATTORNEY, UTICA (CARL J. BOYKIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of two counts of sexual abuse in the first degree (Penal Law former § 130.65 [3]) and one count of endangering the welfare of a child (§ 260.10 [1]). Defendant failed to preserve for our review his contention that the expert testimony of the victim's examining physician was improperly received in evidence ( see CPL 470.05; People v. Walker, 286 A.D.2d 945, 946, lv denied 98 N.Y.2d 641), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). Defendant also failed to preserve for our review his contention that the prosecutor improperly cross-examined him with regard to his refusal to take a voice stress test ( see 470.05 [2]). Defense counsel not only failed to object to the prosecutor's questions, but also opened the door to those questions during defendant's direct examination ( see People v. Michaud, 248 A.D.2d 823, 824, lv denied 91 N.Y.2d 1010; cf. People v. Uriah, 261 A.D.2d 848), and thus we likewise decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). The sentence is not unduly harsh or severe.