PEOPLE v. DAVIS (2007)

 Defendant appeals from a judgment convicting him of, inter alia, four counts each of rape in the second degree (Penal Law § 130.30 [1] ) and incest in the third degree (§ 255.25), five counts of endangering the welfare of a child (§ 260.10[1] ), and one count of sexual abuse in the second degree (§ 130.60[2] ).   Contrary to defendant's contention, County Court did not abuse its discretion in determining pursuant to CPL 60.42 that defendant was not entitled to present evidence that the victim had contracted chlamydia.   It is uncontroverted that only CPL 60.42(5) applies here, and we conclude that defendant failed to demonstrate that such evidence was “relevant and admissible in the interests of justice” (id.;   see People v. Wright, 37 A.D.3d 1142, 829 N.Y.S.2d 377, lv. denied 8 N.Y.3d 951, 836 N.Y.S.2d 561, 868 N.E.2d 244;  see also People v. White, 261 A.D.2d 653, 655-656, 690 N.Y.S.2d 300, lv. denied 93 N.Y.2d 1029, 697 N.Y.S.2d 588, 719 N.E.2d 949).   Contrary to defendant's further contention, the People were not required to corroborate the victim's sworn testimony.   The victim is deemed incapable of consenting to defendant's sexual conduct based on her age, not on mental defect or incapacity (see Penal Law § 130.16;  People v. Lamphier, 302 A.D.2d 864, 865, 754 N.Y.S.2d 482, lv. denied 99 N.Y.2d 656, 760 N.Y.S.2d 120, 790 N.E.2d 294;  People v. McLoud, 291 A.D.2d 867, 737 N.Y.S.2d 216, lv. denied 98 N.Y.2d 678, 746 N.Y.S.2d 467, 774 N.E.2d 232).   We conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Contrary to defendant's further contention, the testimony of the victim did not “tend[ ] to establish the commission of multiple criminal acts during [the time periods] specified in the indictment,” and thus that testimony did not render the indictment duplicitous (People v. Bracewell, 34 A.D.3d 1197, 1198, 827 N.Y.S.2d 793).   The sentence is not unduly harsh or severe.   We have examined defendant's remaining contentions and conclude that they are lacking in merit.

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

MEMORANDUM: