Opinion
June 2, 1989
Appeal from the Livingston County Court, Cicoria, J.
Present — Dillon, P.J., Doerr, Green, Pine and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that as a result of improper questioning of him by the Trial Judge, he was denied his right to a fair trial. Following cross-examination by the prosecutor, the court asked defendant a series of five questions, the last of which inquired whether it was defendant's testimony "under oath, under penalty of perjury, which is a felony, that [the complainants] lied under oath". On numerous occasions, we have forcefully condemned prosecutorial cross-examination which compels a defendant to state that witnesses lied in their testimony (see, e.g., People v. Davis, 112 A.D.2d 722, 724, lv denied 66 N.Y.2d 918; People v Montgomery, 103 A.D.2d 622 [Per Curiam]). It may not be gainsaid that such an examination by the Trial Judge is patently improper, and we direct the Judge's attention to the myriad cases criticizing that type of questioning, as well as those recommending that a court exercise "with judicious restraint" its power to examine witnesses (see, People v. Moulton, 43 N.Y.2d 944, 945; People v. De Jesus, 42 N.Y.2d 519; People v. Carter, 40 N.Y.2d 933). No objection was made to the court's questions, however, and thus the error is not preserved for our review (see, CPL 470.05). On this record, it cannot be said that the error caused such prejudice to defendant as to deny him a fair trial (cf., People v. Mott, 94 A.D.2d 415) and we decline to reverse the conviction in the interest of justice (see, CPL 470.15 [a]).
We further find that the indictment was sufficiently specific in designating the time periods of the offenses alleged therein (see, People v. Keindl, 68 N.Y.2d 410, rearg denied 69 N.Y.2d 823; People v. Morris, 61 N.Y.2d 290) and that the evidence of forcible compulsion was legally sufficient to support the conviction of rape in the first degree (Penal Law § 130.35; see, People v. McKinley, 124 A.D.2d 752, lv denied 70 N.Y.2d 958; People v Bermudez, 109 A.D.2d 674, appeal dismissed 67 N.Y.2d 758). We have reviewed defendant's remaining contention and find it to be without merit.