Opinion
KA 00-01456
June 14, 2002.
Appeal from a judgment of Niagara County Court (Noonan, J.), entered May 26, 2000, convicting defendant after a jury trial of, inter alia, rape in the first degree (two counts).
JOSEPH F. TOWNSEND, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT-APPELLANT.
RUSSELL L. RIDGEWAY, DEFENDANT-APPELLANT PRO SE.
MATTHEW J. MURPHY, III, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, SCUDDER, BURNS, AND GORSKI, 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 after a jury trial of rape in the first degree (two counts) (Penal Law § 130.35), sodomy in the first degree (§ 130.50 [3]) and sexuaL abuse in the first degree (two counts) (§ 130.65 [3]). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction ( see People v. Gray, 86 N.Y.2d 10, 19). In any event, that contention is without merit. In addition to the sworn testimony of the victim describing the offenses, the People presented uncontroverted objective medical findings that were consistent with the victim's testimony. We further conclude that the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495).
Defendant also failed to preserve for our review his contention that County Court erred in permitting the victim's aunt to testify concerning the victim's disclosure of the offenses to her ( see People v. Castro, 255 A.D.2d 331, lv denied 92 N.Y.2d 1030). In any event, that testimony was properly admitted under the prompt outcry exception to the hearsay rule ( see People v. McDaniel, 81 N.Y.2d 10, 16-17; People v. Kornowski, 178 A.D.2d 984, 984-985, lv denied 89 N.Y.2d 1096). Although the court erred in permitting the witness to provide details of the disclosure ( cf. McDaniel, 81 N.Y.2d at 16-18), the error is harmless. The evidence is overwhelming and there is no significant probability that defendant would have been acquitted but for the error ( see People v. Rice, 75 N.Y.2d 929, 932; cf. McDaniel, 81 N.Y.2d at 20). Defendant failed to preserve for our review his further contention that the court erred in permitting a police officer to testify that defendant told her that he believed the victim was "truthful" ( see CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). The sentence is neither unduly harsh nor severe. We have reviewed the contentions in defendant's pro se supplemental brief and conclude that those contentions are without merit.