PEOPLE v. THOMAS (2001)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Ohlig, J.), rendered May 28, 1998, convicting him of rape in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).   Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5] ).

 Contrary to the defendant's contention, the letter he wrote to his wife was properly admitted into evidence.   The defendant composed the letter in the presence of the complainant, his 13 year old stepdaughter, and left it in plain view on the dining room table. Under these circumstances, the defendant may not avail himself of the protection of the marital privilege (see, CPLR 4502 [b];  CPL 60.10;  Wolfle v. U.S., 291 U.S. 7, 14, 54 S.Ct. 279, 78 L.Ed. 617;  Matter of Vanderbilt [Rosner-Hickey], 57 N.Y.2d 66, 73, 453 N.Y.S.2d 662, 439 N.E.2d 378;  People v. Smith, 124 A.D.2d 757, 508 N.Y.S.2d 256).

 With regard to the admissibility of the police information questionnaire contained in the New York State Sexual Assault Evidence Collection Kit, the statements concerning the details of the rape made by the complainant to the nurse who completed the questionnaire should not have been admitted into evidence under the business record exception to the hearsay rule (see, Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517;  People v. Dyer, 128 A.D.2d 719, 513 N.Y.S.2d 211).   Reversal is not mandated, however, because the error was harmless (see, People v. Rice, 75 N.Y.2d 929, 555 N.Y.S.2d 677, 554 N.E.2d 1265;  People v. Painter, 221 A.D.2d 481, 633 N.Y.S.2d 547;  People v. Ranum, 122 A.D.2d 959, 506 N.Y.S.2d 105).

The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).