Opinion
September 29, 1992
Appeal from the Supreme Court, Bronx County (Vincent A. Vitale, J.).
Defendant stands convicted of raping an 11-year-old and holding her down while a friend sodomized her. We find the proof of guilt to be overwhelming in view of the corroborating testimony of the postal worker who helped the victim immediately after commission of the crimes. The victim's statements to this witness immediately after the commission of the crimes were properly admitted as evidence of a timely complaint (see, People v Rice, 75 N.Y.2d 929, 931). While similar statements made at a later time to other witnesses were improperly admitted, there was no objection and thus the error is unpreserved.
Also unobjected to were the prosecutor's questions to defendant and other defense witnesses concerning their failure to report their side of the story to the police, and we decline to reach these issues in the interest of justice.
It was not error to admit evidence of uncharged sodomies committed by defendant's friends as part of the narrative (People v Holland, 174 A.D.2d 508, 509, lv denied 78 N.Y.2d 1011). Nor was it error for the court to refuse a missing witness charge as to the victim's girlfriend and a retired detective since neither of these witnesses were shown to have material testimony or to be under the prosecutor's control (see, People v Erts, 73 N.Y.2d 872).
We have considered defendant's other contentions and find them to be without merit or unpreserved for our review.
Concur — Carro, J.P., Kupferman, Ross and Asch, JJ.