PEOPLE v. WILLIAMS (2009)

On appeal from a judgment convicting him upon a jury verdict of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [former (a) ] ), defendant contends that he was denied his right to a fair trial because the prosecutor knowingly elicited testimony from the victim that was false and misleading.   Defendant failed to preserve that contention for our review (see People v. Cooper, 219 A.D.2d 426, 433, 643 N.Y.S.2d 532, affd. 90 N.Y.2d 292, 660 N.Y.S.2d 546, 683 N.E.2d 11;  People v. Jordan, 181 A.D.2d 745, 746-747, 581 N.Y.S.2d 71, lv. denied 80 N.Y.2d 833, 587 N.Y.S.2d 918, 600 N.E.2d 645) and, in any event, that contention lacks merit.   Although we agree with defendant that a prosecutor has a duty to correct trial testimony if he or she knows that it is false (see People v. Savvides, 1 N.Y.2d 554, 556-557, 154 N.Y.S.2d 885, 136 N.E.2d 853;  People v. Hendricks, 2 A.D.3d 1450, 769 N.Y.S.2d 432, lv. denied 2 N.Y.3d 762, 778 N.Y.S.2d 781, 811 N.E.2d 43), we conclude that the prosecutor here did not in fact elicit false testimony from the victim.   We reject the further contention of defendant that Supreme Court erred in refusing to allow him to cross-examine the victim with respect to her sexual history pursuant to the Rape Shield Law (see CPL 60.42).  “ ‘Evidence of the victim's ․ sexual conduct did not fall within any of the exceptions set forth in CPL 60.42(1) through (4)’ ” (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), and we cannot say that the court abused its discretion in refusing to apply the exception set forth in CPL 60.42(5) (see 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).

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

MEMORANDUM: