Opinion
June 2, 1989
Appeal from the Jefferson County Court, Parker, J.
Present — Dillon, P.J., Denman, Green, Pine, and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Each of defendant's claims, raised on appeal from his convictions for first degree sodomy and first degree sexual abuse, lacks merit or was not preserved. The court's charge was proper and adequate in all respects. The court did not unnecessarily restrict defense counsel's cross-examination of the complainant and the court properly disallowed inquiry into the complainant's other sexual conduct (see, CPL 60.42; People v. Mandel, 48 N.Y.2d 952, 953, cert denied and appeal dismissed 446 U.S. 949, reh denied 448 U.S. 908; People v. Westfall, 95 A.D.2d 581, 583-585). Defendant's claim that the verdict was repugnant was not preserved by timely objection and may not be considered on appeal (see, People v Alfaro, 66 N.Y.2d 985, 987). In any event, the verdict was not repugnant. By perceiving a difference in the way complainant described the two incidents, the jury could have inferred that defendant subjected her to sexual contact but not deviate sexual intercourse on April 21, 1982. The court properly denied defendant's posttrial motion to vacate the judgment on the ground of newly discovered evidence because defendant did not establish the probative value of such evidence (CPL 330.30; 440.10 [1] [g]; People v. Salemi, 309 N.Y. 208, cert denied 350 U.S. 950; People v. Rivera, 108 A.D.2d 829, 830).