The People of the State of New York, Respondent, - v. Woojin Cho, Defendant-Appellant. (2023)

Per Curiam.

Judgment of conviction (Audrey E. Stone, J.), rendered July 19, 2022, affirmed.

Defendant was convicted, after a jury trial, of forcible touching (see Penal Law § 130.52[1]), third-degree sexual abuse (see Penal Law § 130.55) and second-degree harassment (see Penal Law § 240.26[1]). The People's proof was strong and persuasive, and is not now challenged by defendant on sufficiency or weight of the evidence grounds. Complainant credibly testified that during a consultation, defendant, a spinal surgeon, asked her if she wanted to be his "sugar baby;" removed her bra; kissed her on the neck; squeezed her breasts; inserted his fingers into her vagina, and placed her hand on his erect penis. The complainant's account was corroborated by other evidence, including a controlled telephone call with police, wherein defendant told complainant she should be "discreet," that he had many "sugar daughters," and then giggled and replied "absolutely" when asked by the complainant if he enjoyed touching her.

By failing to make objections or request further relief after the court took curative action, defendant failed to preserve most of his challenges to the prosecutor's summation, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. Taken as a whole, the bulk of the challenged remarks were either fair response to defense counsel's arguments on summation or fair comment on the evidence, and any improprieties were not so egregious as to deprive defendant of a fair trial (see People v Garland, 155 AD3d 527, 529 [2017], affd 32 NY3d 1094 [2018], cert denied __ US __, 140 S Ct 2525 [2020]; People v Feola, 154 AD3d 638, 639 [2017], lv denied 31 NY3d 1013 [2018]), including the prosecutor's improper references to defendant as a "liar" (see People v Feliciano, 133 AD3d 469, 470 [2015], lv denied 27 NY3d 1150 [2016]). In any event, the court's curative instructions were sufficient to prevent any prejudice (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976 [1998]). Nor could the prosecutor's comments be perceived as vouching for the credibility of the complainant, since those remarks were a permissible comment on a matter of credibility, and the prosecutor did not become an unsworn witness (see People v Ringer, 90 AD3d 439, 439-440 [2011], lv denied 18 NY3d 927 [2012]; People v Massie, 305 AD2d 116, 117 [2003], affd 2 NY3d 179 [2004]).

The evidentiary rulings challenged on appeal, to the extent preserved, were provident exercises of the court's discretion that did not cause defendant any prejudice. The court properly exercised its discretion in limiting defendant's use of leading questions on direct examination (see People v Martina, 48 AD3d 1271, 1272 [2008]). Nor was defendant denied a fair trial when the court precluded the testimony of defendant's secretary, who was not present during the controlled call and had no direct knowledge of the facts (see People v Scarola, 71 NY2d 769, 777 [1988]). Finally, the testimony of complainant and a physician's assistant at Jacobi Hospital - that the complainant ingested 15-20 tablets of a prescription medication for pain management and anxiety immediately after defendant's conduct, resulting in her hospitalization because she felt upset and "very sad" - was probative of complainant's lack of consent and not unduly prejudicial (see People v Frumusa, 29 NY3d 364, 372 [2017]). In any event, even assuming the trial court erred in admitting the challenged evidence or precluding testimony, any error was harmless in light of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 NY2d 230 [1975]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: July 3, 2023