Opinion
68 SSM 30.
Decided February 19, 2004.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Second Judicial Department, from an order of that Court, entered July 28, 2003. The Appellate Division affirmed a judgment of the Supreme Court, Queens County (Richard Buchter, J.), which had convicted defendant, upon a jury verdict, of rape in the first degree and sexual abuse in the first degree.
People v. Shelton, 307 A.D.2d 370, affirmed.
Submitted by Lynn W.L. Fahey, for appellant.
Submitted by Jennifer Hagan, for respondent.
Chief Judge Kaye and Judges Smith, Ciparick, Rosenblatt, Graffeo, Read and Smith concur.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant's claim that the trial court misapplied the "prompt outcry" exception to the hearsay rule when it permitted the complainant's daughter to testify lacks merit. An outcry of rape is prompt if made "at the first suitable opportunity," ( People v. O'Sullivan, 104 N.Y. 481, 486) and "is a relative concept dependent on the facts" ( People v. McDaniel, 81 N.Y.2d 10, 17). In determining that the complaint here was prompt, the trial court properly considered that the rape occurred late at night, that defendant warned complainant not to tell anyone, and that defendant lived in the same apartment building as the 81-year-old complainant.
Defendant's preserved objections to the prosecutor's summation do not merit reversal of the conviction.
On review of submissions pursuant to section 500.4 of the Rules, order affirmed, in a memorandum.