Opinion
KA 02-02286.
Decided June 14, 2004.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered September 25, 2002. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the first degree and endangering the welfare of a child.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (TIMOTHY P. DONAHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (ARTHUR G. WEINSTEIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of sexual abuse in the first degree (Penal Law § 130.65) and endangering the welfare of a child (§ 260.10 [1]). The jury did not fail to give the evidence the weight it should be accorded ( see generally People v. Bleakley, 69 N.Y.2d 490, 495), and thus the verdict convicting defendant of sexual abuse is not against the weight of the evidence ( see People v. Pope [appeal No. 1], ___ A.D.3d ___ [Apr. 30, 2004]; People v. Jackson, 4 A.D.3d 848, 849; see generally Bleakley, 69 N.Y.2d at 495; cf. People v. Wallace, 306 A.D.2d 802). Defendant was not deprived of a fair trial by prosecutorial misconduct on summation ( see People v. West, 4 A.D.3d 791, 792; see also People v. Halm, 81 N.Y.2d 819, 821; People v. Kidd, 265 A.D.2d 859, lv denied 94 N.Y.2d 824). County Court properly admitted the testimony of the victim's grandfather under the prompt complaint exception to the hearsay rule, and thus that testimony did not constitute improper bolstering ( see People v. McDaniel, 81 N.Y.2d 10, 16-17; People v. Kornowski, 178 A.D.2d 984, lv denied 89 N.Y.2d 1096). Despite the victim's delay of at least 15 days in revealing the abuse ( see People v. Rodriguez, 284 A.D.2d 952, lv denied 96 N.Y.2d 924; Kornowski, 178 A.D.2d at 984-985), the evidence demonstrates that the complaint was "made `at the first suitable opportunity'" ( McDaniel, 81 N.Y.2d at 17). The testimony of the victim's grandfather did not "contain unnecessary or impermissible details" ( People v. Rawlinson, 280 A.D.2d 943, 943, lv denied 96 N.Y.2d 833; see Rodriguez, 284 A.D.2d 952). The sentence is not unduly harsh or severe.