Opinion
April 6, 1998
Appeal from the Supreme Court, Queens County (Thomas, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed upon the defendant's conviction of sodomy in the first degree from eight-and-one-third to twenty-five years imprisonment to an indeterminate term of four to twelve years imprisonment; as so modified, the judgment is affirmed.
The complainant's statement to her mother was admissible only in part under the "prompt outcry" exception to the hearsay rule ( People v. McDaniel, 81 N.Y.2d 10, 16-17). It was incumbent on the defendant to specifically object to those portions of the testimony which were inadmissible at the time the testimony was given in order to preserve this error for appellate review ( see, CPL 470.05; People v. Pace, 145 A.D.2d 834, 836). In any event, there was no significant probability that this error contributed to the jury's decision to convict the defendant. Therefore, reversal on this ground is unwarranted ( see, People v. Rice, 75 N.Y.2d 929, 930; People v. Teixeira, 189 A.D.2d 838).
The defendant also failed to preserve most of the challenged comments made by the prosecutor during summation since he did not seek further ameliorative action or immediate curative instructions to his sustained objections ( see, CPL 470.05; People v. Persaud, 237 A.D.2d 538). In any event, on summation counsel had the right to comment upon every pertinent matter of fact bearing upon questions the jury had to decide, provided that counsel stayed within the four corners of the evidence ( see, People v. Tankleff, 84 N.Y.2d 992, 994; People v. Ashwal, 39 N.Y.2d 105, 109).
Under the particular circumstances of this case, the sentence imposed for the defendant's conviction of sodomy in the first degree is excessive to the extent indicated herein.
Copertino, J.P., Santucci, Krausman and Florio, JJ., concur.