Opinion
No. 193 SSM 25.
Decided September 22, 2009.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of that Court, entered February 11, 2009. The Appellate Division modified, as a matter of discretion in the interest of justice, a judgment of the Oneida County Court (Barry M. Donalty, J.), which had convicted defendant, upon a jury verdict, of attempted rape in the first degree, sexual abuse in the first degree, criminal sexual act in the first degree, attempted sexual abuse in the first degree and endangering the welfare of a child. The modification consisted of directing that the sentences imposed on counts one through four of the indictment run concurrently with respect to each other. The Appellate Division affirmed the judgment as modified.
People v Kolupa, 59 AD3d 1134, affirmed.
Frank J. Nebush, Jr., Public Defender, Criminal Division, Utica ( Esther Cohen Lee of counsel), for appellant.
Scott D. McNamara, District Attorney, Utica ( Steven G. Cox of counsel), for respondent.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed.
Defendant failed to preserve his argument that the People introduced insufficient evidence to corroborate the child victim's testimony. At the close of the People's case, the trial court denied defendant's motion to dismiss and defendant proceeded to present his own evidence. He did not thereafter renew the motion to dismiss at the close of his proof or specifically argue that there was not sufficient corroboration of the victim's statements. As a result, this issue is not reviewable ( see e.g. People v Lane, 7 NY3d 888, 889; People v Payne, 3 NY3d 266, 273; People v Hines, 97 NY2d 56, 61-62). Defendant's remaining contention is without merit.
Today's decision correctly applies People v Hines ( 97 NY2d 56, 61-62). I have expressed my unhappiness with Hines before ( People v Payne, 3 NY3d 266, 273 [2004, R.S. Smith, J., concurring]), but this case, in which the Appellate Division did not mention preservation, defendant does not argue the issue, and the Appellate Division's decision on the merits seems clearly correct, is not the right one for further examination of the Hines rule.
Judge SMITH concurs in a separate concurring opinion.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed in a memorandum.