PEOPLE v. FUENTES (2005)

Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered August 9, 2001, convicting defendant, after a jury trial, of course of sexual conduct against a child in the first degree, and sentencing him to a term of 9 to 18 years, unanimously affirmed.

 Although we conclude that there was an insufficient basis for the admission of hearsay statements as background evidence explaining the course of events (compare People v. Tosca, 98 N.Y.2d 660, 746 N.Y.S.2d 276, 773 N.E.2d 1014 [2002] ), we find the error to be harmless.   This evidence did not suggest to the jury that any nontestifying declarants had relevant personal knowledge of the events in question, and there was overwhelming evidence of defendant's guilt, including the credible testimony of the victim and her sister, along with medical evidence of repeated penetration.   Defendant's Confrontation Clause argument is unpreserved (People v. Kello, 96 N.Y.2d 740, 743-744, 723 N.Y.S.2d 111, 746 N.E.2d 166 [2001] ) and unavailing.

 The prosecutor's summation did not deprive defendant of a fair trial, and the court properly exercised its discretion in denying defendant's mistrial motion.   Although the prosecutor made several inappropriate comments, the court's curative actions were sufficient to prevent any prejudice (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981] ).   In any event, were we to find any error, we would find it to be harmless in view of the overwhelming evidence of defendant's guilt.