PEOPLE v. ARCE (2003)

 Defendant appeals from a judgment convicting him, after a jury trial, of six counts of sexual abuse in the first degree (Penal Law § 130.65 [1] ), five counts of sodomy in the first degree (§ 130.50[3] ), three counts each of menacing in the second degree (§ 120.14[1] ) and endangering the welfare of a child (§ 260.10[1] ), and one count of sodomy in the second degree (§ 130.45), all arising out of his repeated sexual molestation of and physical threats toward his adolescent sons.   We reject the contention of defendant that County Court erred in denying his motion to dismiss the indictment pursuant to CPL 30.30 (see People v. Butler, 300 A.D.2d 1103, 1104, 752 N.Y.S.2d 577, lv. denied 99 N.Y.2d 613, 757 N.Y.S.2d 823, 787 N.E.2d 1169).   We further conclude that the court properly permitted the People to present proof on their case-in-chief concerning an uncharged incident in which defendant, while brandishing a knife, chased one of his sons outside the house.   The probative value of that evidence on the issue of forcible compulsion outweighed its prejudicial tendency to establish that defendant had a criminal propensity (see People v. Chase, 277 A.D.2d 1045, 716 N.Y.S.2d 486, lv. denied 96 N.Y.2d 733, 722 N.Y.S.2d 799, 745 N.E.2d 1022;  People v. Kirkey, 248 A.D.2d 979, 980, 670 N.Y.S.2d 946, lv. denied 92 N.Y.2d 900, 680 N.Y.S.2d 64, 702 N.E.2d 849).   The court properly excluded the grand jury testimony of the victims' aunt.  “Defendant failed to make the requisite showing that the [witness's] grand jury testimony bore sufficient indicia of reliability” (People v. Coleman, 306 A.D.2d 941, 760 N.Y.S.2d 797;  cf.  People v. Robinson, 89 N.Y.2d 648, 655-656, 657 N.Y.S.2d 575, 679 N.E.2d 1055).  “In particular, there was no demonstration that the [witness] was subjected to vigorous examination before the grand jury or that h [er] account was otherwise tested for credibility” (Coleman, 306 A.D.2d at 942, 760 N.Y.S.2d 797;  cf.  Robinson, 89 N.Y.2d at 656-657, 657 N.Y.S.2d 575, 679 N.E.2d 1055;  see generally People v. Rosa, 302 A.D.2d 231, 754 N.Y.S.2d 279, lv. denied 99 N.Y.2d 658, 760 N.Y.S.2d 123, 790 N.E.2d 297;  People v. Richardson, 297 A.D.2d 611, 612, 747 N.Y.S.2d 364, lv. granted 99 N.Y.2d 563, 754 N.Y.S.2d 216, 784 N.E.2d 89).   We decline to exercise our authority to reduce defendant's sentence as a matter of discretion in the interest of justice, but we note that the sentence is automatically capped pursuant to Penal Law former § 70.30(1)(c)(iii).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: