Opinion
KA 02-00126
February 7, 2003.
Appeal from a judgment of Wayne County Court (Kehoe, J.), entered November 8, 2001, convicting defendant after a jury trial of, inter alia, sodomy in the third degree (two counts).
JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.
RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (JACQUELINE M.C. CORMICK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., HURLBUTT, BURNS, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by directing that the terms of imprisonment imposed on counts four and five of the indictment shall run concurrently to the terms of imprisonment imposed on counts one and two of the indictment and as modified the judgment is affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of two counts each of rape in the third degree (Penal Law former § 130.25 [2]) and sodomy in the third degree (former § 130.40 [2]). We reject the contention of defendant that he was deprived of a fair trial when County Court allowed the prosecutor to ask allegedly leading questions and refused to allow defendant to testify further with respect to the victim's alleged drug use in attempting to impeach the victim's credibility. The determination whether to allow leading questions is within the sound discretion of the court (see People v. Rodriguez, 284 A.D.2d 952, lv denied 96 N.Y.2d 924), and here there is no showing that the court abused its discretion (see People v. Cuttler, 270 A.D.2d 654, lv denied 95 N.Y.2d 795). We further conclude that the court properly exercised its discretion in limiting defendant's testimony with respect to the victim's alleged drug use, which concerned the collateral issue of the victim's credibility (see generally People v. Davis, 43 N.Y.2d 17, 26-27, cert denied 435 U.S. 998, rearg dismissed 61 N.Y.2d 670; People v. Nicholson, 269 A.D.2d 868, 869, lv denied 95 N.Y.2d 907). Contrary to defendant's further contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495). Contrary to defendant's contentions, the jury was entitled to assess the credibility of the witnesses and to credit certain parts of the victim's testimony while rejecting other parts (see e.g. People v. Vaughn, 291 A.D.2d 915, 916, lv denied 97 N.Y.2d 762; People v. Green [Scott], 219 A.D.2d 856, 856-857). We agree with defendant, however, that the sentence is unduly harsh and severe. We therefore modify the judgment as a matter of discretion in the interest of justice by directing that the terms of imprisonment imposed on counts four and five of the indictment shall run concurrently to the terms of imprisonment imposed on counts one and two of the indictment (see CPL 470.15 [b]; see e.g. People v. Pastorious, 272 A.D.2d 944, lv denied 95 N.Y.2d 907). We have reviewed defendant's remaining contention and conclude that it is without merit.