PEOPLE v. SMITH (2001)

 Defendant appeals from a judgment convicting him after a nonjury trial of two counts each of rape in the first degree (Penal Law § 130.35[1]) and incest (Penal Law § 255.25).   We reject defendant's contention that Supreme Court abused its discretion in precluding cross-examination of the complainant concerning a prior allegation of sexual abuse against her father.  “[E]vidence of a victim's prior complaint of a sex crime does not come within the proscriptive scope of CPL 60.42;  therefore, its ‘admissibility rests within the discretion of the trial court’ ” (People v. Hamel, 174 A.D.2d 837, 571 N.Y.S.2d 138, quoting People v. Harris, 132 A.D.2d 940, 941, 518 N.Y.S.2d 269).   The preclusion of such questioning does not constitute an abuse of discretion where, as here, defendant made no showing that the prior allegation was false (see, People v. Mandel, 48 N.Y.2d 952, 953, 425 N.Y.S.2d 63, 401 N.E.2d 185, appeal dismissed and cert. denied 446 U.S. 949, 100 S.Ct. 2913, 64 L.Ed.2d 805, reh. denied 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138;  People v. Gozdalski, 239 A.D.2d 896, 897, 659 N.Y.S.2d 677, lv. denied 90 N.Y.2d 858, 661 N.Y.S.2d 185, 683 N.E.2d 1059).   Defendant abandoned his equivocal request to proceed pro se, and thus his further contention that the court erred in denying that request is not properly before us (see, People v. Branch, 155 A.D.2d 473, 474, 547 N.Y.S.2d 135, lv. denied 75 N.Y.2d 867, 553 N.Y.S.2d 298, 552 N.E.2d 877;  see also, People v. Ramsey, 201 A.D.2d 915, 610 N.Y.S.2d 902, lv. denied 83 N.Y.2d 875, 613 N.Y.S.2d 135, 635 N.E.2d 304).

Judgment unanimously affirmed.

MEMORANDUM: