Opinion
(1781) KA 99-1565
December 21, 2001.
(Appeal from Judgment of Monroe County Court, Marks, J. — Rape, 1st Degree.)
PRESENT: PIGOTT, JR., P.J., HAYES, SCUDDER, BURNS AND GORSKI, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of seven counts each of rape in the first degree (Penal Law § 20.00, 130.35) and sodomy in the first degree (Penal Law § 20.00, 130.50 ), two counts of attempted sodomy in the first degree (Penal Law § 20.00, 110.00, 130.50), and five counts of sexual abuse in the first degree (Penal Law § 20.00, 130.65). We reject defendant's contention that County Court erred in refusing to unseal the youthful offender adjudication file of one of the victims following an in camera review of that file. Although the illegal and immoral acts underlying a youthful offender adjudication may be used for impeachment purposes ( see, People v. Vidal, 26 N.Y.2d 249, 253-254), "[t]he extent to which disparaging questions, not relevant to the issues, but bearing on the credibility of a witness, may be put upon cross-examination is discretionary with the trial court" ( People v. Duffy, 36 N.Y.2d 258, 262, mot to amend remittitur granted 36 N.Y.2d 857, cert denied 423 U.S. 861; cf., People v. Caines, 221 A.D.2d 278, lv denied 88 N.Y.2d 845). Here, it cannot be said that the court abused its discretion in refusing to unseal the file, particularly in view of the fact that the victim's testimony was supported by a videotape of the events.
We further reject defendant's contention that the conviction of one count each of rape and sexual abuse should be reversed because there was testimony concerning multiple acts of rape and sexual abuse by one of the codefendants but only one count of each crime was charged, and thus there is a risk that defendant was convicted of an unindicted crime. The "acts" of sexual abuse were not separate and distinct acts but were "part and parcel of the continuous conduct" ( People v. Grant, 108 A.D.2d 823; cf., People v. Smithers, 255 A.D.2d 916, 917, lv denied 92 N.Y.2d 1054; People v. Yankowitz, 169 A.D.2d 748, lv denied 77 N.Y.2d 883), and the testimony did not establish more than one act of rape by the codefendant ( see, People v. Hall, 238 A.D.2d 886, lv denied 90 N.Y.2d 905; cf., People v. Catalano, 178 A.D.2d 962, lv denied 79 N.Y.2d 919). Finally, defendant failed to preserve for our review his contention that the court erred in its charge to the jury ( see, CPL 470.50; People v. Adams, 278 A.D.2d 920, 921, lv denied 96 N.Y.2d 825), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).