PEOPLE v. KERRICK (2007)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of sexual abuse in the first degree (Penal Law § 130.65[1] ) and four counts of sexual abuse in the second degree (§ 130.60[2] ).   We reject defendant's contention that reversal is required based upon prosecutorial misconduct.  “With respect to the instances of alleged prosecutorial misconduct that are preserved for our review, we conclude that ‘the conduct of the prosecutor was not so egregious or prejudicial as to deny defendant his right to a fair trial’ ” (People v. Mastowski, 26 A.D.3d 744, 746, 808 N.Y.S.2d 871, lv. denied 6 N.Y.3d 850, 816 N.Y.S.2d 756, 849 N.E.2d 979, 7 N.Y.3d 815, 822 N.Y.S.2d 490, 855 N.E.2d 806, quoting People v. Dexter, 259 A.D.2d 952, 954, 688 N.Y.S.2d 289, affd. 94 N.Y.2d 847, 703 N.Y.S.2d 64, 724 N.E.2d 759).   Defendant failed to preserve for our review his contention with respect to the remaining instances of alleged prosecutorial misconduct during summation (see CPL 470.05[2];  People v. Romero, 7 N.Y.3d 911, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006] ), and he also failed to preserve for our review his contention that County Court improperly questioned the complainant (see People v. Charleston, 56 N.Y.2d 886, 887, 453 N.Y.S.2d 399, 438 N.E.2d 1114).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   The court properly exercised its discretion in precluding defendant from presenting testimony concerning matters that were irrelevant to the charges against him (see People v. Greene, 16 A.D.3d 350, 792 N.Y.S.2d 64, lv. denied 5 N.Y.3d 789, 801 N.Y.S.2d 810, 835 N.E.2d 670).   Finally, the court's imposition of a sentence more severe than that offered during plea negotiations does not support the contention of defendant that he was penalized for exercising his right to go to trial (see People v. Taplin, 1 A.D.3d 1044, 1046, 767 N.Y.S.2d 541, lv. denied 1 N.Y.3d 635, 777 N.Y.S.2d 33, 808 N.E.2d 1292), and the sentence is not unduly harsh or severe.

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

MEMORANDUM: