PEOPLE v. LAVINE (2023)

Judgment, Supreme Court, New York County (Daniel Conviser, J.), rendered February 18, 2022, convicting defendant, after a jury trial, of two counts of sexual abuse in the third degree, and sentencing him to a conditional discharge for a period of one year, unanimously affirmed.

We agree with the trial court that prosecutor's summation did not impermissibly shift the burden of proof to defendant, effectively requiring him to prove consent.  Rather, the remark in question merely apprised the jurors that a finding of lack of consent could not only be proven by the victim expressly rejecting sexual contact, such as by saying “no” or “stop.”  The remark at issue did not misstate the law, ask the jury to disregard it, or undermine a defense claim of implied consent.  On the contrary, the remark was consistent with a person's responsibility not to engage in sexual contact in the absence of “express[ ] or implied[ ] acquiescence in the actor's conduct” (Penal Law 130.05[2][c]).

To the extent that an isolated phrase earlier in the prosecutor's summation could be viewed as vouching for the victim's credibility, it did not deprive defendant of a fair trial under all the circumstances, and it is insufficient to warrant reversal (see People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993]).