Opinion
2014-04-2
The PEOPLE, etc., respondent, v. Stephen CROSS, appellant.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ruth E. Ross, and Brian E. Goldberg of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ruth E. Ross, and Brian E. Goldberg of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, ROBERT J. MILLER and HECTOR D. LASALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered November 10, 2011, convicting him of rape in the third degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was charged with two counts of rape in the third degree in connection with an incident in his home involving the complainant, who was then 15 years old. At trial, the Supreme Court admitted testimony regarding the complainant's “outcry” several days later, to various people. The defendant contends on appeal that some of the outcry testimony was not admissible at all and that some of it went beyond the permissible bounds of “outcry,” in that it went to the details of the incident, rather than merely the nature of the complaint ( see People v. Rosario, 17 N.Y.3d 501, 512, 934 N.Y.S.2d 59, 958 N.E.2d 93;People v. McDaniel, 81 N.Y.2d 10, 17–18, 595 N.Y.S.2d 364, 611 N.E.2d 265). The defendant's claim is, in part, unpreserved for appellate review ( seeCPL 470.05[2]; People v. Batista, 92 A.D.3d 793, 793, 938 N.Y.S.2d 479). In any event, to the extent that the outcry evidence was improper in scope or extent, the error in admitting the testimony was harmless. The evidence of the defendant's guilt was overwhelming, and there is no significant probability that, absent the error, the defendant would have been acquitted ( see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787;People v. Leon, 98 A.D.3d 1065, 1065, 950 N.Y.S.2d 588;People v. Sweeney, 92 A.D.3d 810, 811, 938 N.Y.S.2d 452).
Furthermore, the defense counsel's failure to object to some of the allegedly improper outcry testimony did not constitute ineffective assistance of counsel ( see People v. Hanson, 100 A.D.3d 771, 772, 953 N.Y.S.2d 684).