PEOPLE v. BONES (2008)

 On appeal from a judgment convicting him upon a jury verdict of rape in the first degree (Penal Law § 130.35[2] ) and rape in the second degree (§ 130.30[1] ), defendant contends that County Court erred in refusing to allow him to elicit testimony that the victim was not sexually active prior to the incident.   We reject that contention.   The court properly determined that CPL 60.42, which concerns the admissibility of evidence of a victim's past sexual activity, also concerns the admissibility of evidence of the absence of sexual activity on the part of the victim (see generally People v. Williams, 81 N.Y.2d 303, 311, 598 N.Y.S.2d 167, 614 N.E.2d 730;  People v. Nemie, 87 Cal.App.3d 926, 929, 151 Cal.Rptr. 32).   Defendant's contention that the verdict is against the weight of the evidence also lacks merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The jury was entitled to credit the testimony of the victim and her aunt, and we accord great deference to the jury's “ opportunity to view the witnesses, hear the testimony and observe demeanor” (id.).

 Defendant further contends that he was deprived of a fair trial based on prosecutorial misconduct during summation.   Defendant failed to object to several of the allegedly improper comments and thus failed to preserve for our review his contention with respect to those comments (see People v. Hess, 234 A.D.2d 925, 653 N.Y.S.2d 216, lv. denied 90 N.Y.2d 1011, 666 N.Y.S.2d 106, 688 N.E.2d 1390), and we decline to exercise our power to review his contention with respect thereto as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   We note in addition that the court “took appropriate steps to dilute [the] effect” of the prosecutor's comments concerning facts that were not in evidence (People v. Curley, 159 A.D.2d 969, 970, 552 N.Y.S.2d 768, lv. denied 76 N.Y.2d 733, 558 N.Y.S.2d 895, 557 N.E.2d 1191).   The remaining comments to which defendant objected were “a fair response to defense counsel's summation and did not exceed the bounds of legitimate advocacy” (People v. Melendez, 11 A.D.3d 983, 984, 782 N.Y.S.2d 893, lv. denied 4 N.Y.3d 888, 798 N.Y.S.2d 734, 831 N.E.2d 979;  see also People v. Arce, 42 N.Y.2d 179, 190, 397 N.Y.S.2d 619, 366 N.E.2d 279).

 The court did not abuse its discretion in denying defendant's request for an adjournment because of the pregnancy of the victim and another prosecution witness.  “The court's exercise of discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice” (People v. Arroyo, 161 A.D.2d 1127, 1127, 555 N.Y.S.2d 499, lv. denied 76 N.Y.2d 852, 560 N.Y.S.2d 991, 561 N.E.2d 891), and defendant has failed to make the requisite showing of prejudice.   We reject defendant's further contention that the photo array was unduly suggestive.   The photo array did not “draw [ ] the viewer's attention so as to indicate that the police ha [d] selected a particular individual” (People v. Parker, 257 A.D.2d 693, 694, 684 N.Y.S.2d 300, lv. denied 93 N.Y.2d 1015, 1024, 697 N.Y.S.2d 574, 583, 719 N.E.2d 935, 944).   Defendant failed to preserve for our review his contention that the court's Sandoval ruling constituted an abuse of discretion (see People v. O'Connor, 19 A.D.3d 1154, 1155, 795 N.Y.S.2d 917, lv. denied 5 N.Y.3d 831, 804 N.Y.S.2d 46, 837 N.E.2d 745), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   We have considered defendant's remaining contention and conclude that it is without merit.

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

MEMORANDUM: