Opinion
2006-837 W CR.
Decided on July 19, 2007.
Appeal from a judgment of the Justice Court of the Village of Port Chester, Westchester County (Katheryn A. Ritchie, J.), rendered April 21, 2006. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the third degree and endangering the welfare of a child.
Judgment of conviction affirmed.
PRESENT: RUDOLPH, P.J., TANENBAUM and LaCAVA, JJ.
Defendant was convicted after a jury trial of sexual abuse in the third degree (Penal Law § 130.55) and endangering the welfare of a child (Penal Law § 260.10). Contrary to defendant's contention, the testimony of the complainant's sister, that she was told by complainant shortly after the incident that defendant touched her inappropriately on the calf and breast, did not exceed the level of detail permissible under the prompt outcry exception to the hearsay rule ( People v McDaniel, 81 NY2d 10, 16-18; People v Perkins, 27 AD3d 890, lv denied 7 NY3d 761; People v Kittles, 23 AD3d 775, lv denied 6 NY3d 755; People v Salazar, 234 AD2d 322, lv denied 89 NY2d 946). Moreover, even if said testimony exceeded the allowable level, the court sustained defendant's objections thereto and clearly instructed the jury only to consider that the complainant stated to her sister that she was touched inappropriately ( see People v Kittles, 23 AD3d at 776).
Defendant further contends that he was denied a fair trial due to the court's allowing limited testimony by the school nurse to the effect that two days after the incident, complainant came to her office visibly shaken, upset and crying, and that after ascertaining that complainant was upset as a result of the incident, the nurse called the school psychologist. Said testimony was properly offered to establish the element of injury to complainant's mental welfare ( see Penal Law § 260.10). We note that by failing to object to the court's refusal to permit testimony of the details of a conversation between defendant's grandson and complainant shortly after the incident, defendant failed to preserve said issue for appellate review ( see CPL 470.05). Finally, under the totality of the circumstances, we find that the sentence imposed was not excessive.
Rudolph, P.J., and LaCava, J., concur.
Tanenbaum, J., dissents in a separate memorandum.
In my opinion, the judgment of conviction should be reversed. I respectfully disagree with the majority's assertion that the testimony of the sister did not exceed the level of detail permissible under the prompt outcry exception to the hearsay rule. Further, the complainant's sister's testimony contained a description of an event which differed from that of the complainant. The lower court's limiting instructions were ineffectual to alleviate the prejudicial effect thereof. Similarly, the evidence permitted as to the complainant's subsequent conduct at school and the testimony of the nurse, were all prejudicial and non-probative. Evidence was improperly admitted which portrayed acts and events that went beyond the allegations in the accusatory instrument. The foregoing errors were compounded by the improper limitation of defendant's grandson's testimony and did not permit a description of events which would allow the jury to consider that the complained of conduct was of an innocent or inadvertent nature. Accordingly, I would reverse the judgment of conviction and remand the matter to the court below for a new trial.