Opinion
KA 00-02668
June 13, 2003.
Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered May 19, 2000, convicting defendant after a jury trial of rape in the first degree (two counts).
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL C. WALSH OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, 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 two counts of rape in the first degree (Penal Law 130.35) and one count each of sexual abuse in the first degree ( 130.65 [3]) and endangering the welfare of a child (260.10 [1]). We reject defendant's contention that Supreme Court erred in admitting the medical records of the victim containing her statements concerning the incidents and the testimony of a pediatrician and a nurse who reported what the victim had said about the incidents. Contrary to defendant's contention, those medical records and that testimony did not impermissibly bolster the victim's testimony. A patient's statements made to medical personnel that are relevant to diagnosis and treatment are admissible as an exception to the hearsay rule ( see People v. Dennee, 291 A.D.2d 888, 889, lv denied 98 N.Y.2d 650) and do not constitute impermissible bolstering ( see People v. Harris, 151 A.D.2d 981, lv denied 74 N.Y.2d 810). The sentence is neither unduly harsh nor severe.