Opinion
2002-05293
Submitted October 3, 2003.
October 27, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered May 22, 2002, convicting him of rape in the first degree, rape in the second degree, sodomy in the first degree, sodomy in the second degree, sexual abuse in the first degree (four counts), sexual abuse in the second degree (four counts), and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence.
Judah Maltz, Kew Gardens, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Doreen S. Martin of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, WILLIAM D. FRIEDMANN, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law, by vacating the convictions of sexual abuse in the first degree under the fifth count of the indictment and sexual abuse in the second degree under the eleventh count of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the trial court properly permitted the prosecution to introduce evidence of his uncharged acts of abuse and violence against the mother and brother of the child victim ( see People v. Cook, 93 N.Y.2d 840; People v. Alvino, 71 N.Y.2d 233; People v. Medunjanin, 276 A.D.2d 719; People v. Wright, 266 A.D.2d 414; People v. Gargano, 222 A.D.2d 694; People v. George, 197 A.D.2d 588). The trial court providently exercised its discretion in determining that the probative value of the evidence outweighed its potential for prejudice ( see People v. Ventimiglia, 52 N.Y.2d 350, 359-360).
The People correctly concede that two of the defendant's convictions, for first and second degree sexual abuse, must be vacated, since those counts of the indictment (counts 5 and 11) were dismissed before the trial and were mistakenly submitted to the jury ( see People v. Smiley, 303 A.D.2d 425, lv denied 100 N.Y.2d 542; People v. Harris, 229 A.D.2d 595). However, reversal of the remaining counts is not warranted because the defendant was not prejudiced by the introduction of evidence regarding the dismissed counts ( see People v. Doshi, 93 N.Y.2d 499; People v. Smiley, supra; People v. Williams, 292 A.D.2d 474).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit.
ALTMAN, J.P., FLORIO, FRIEDMANN and MASTRO, JJ., concur.