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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Robert RASMUSSEN, Jr., Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  PINE, J.P., WISNER, HURLBUTT, SCUDDER and BALIO, JJ. Shirley A. Gorman, North Chili, for defendant-appellant. David E. Gann, Batavia, for plaintiff-respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of rape in the first degree (Penal Law § 130.35[2] ) and sexual abuse in the first degree (Penal Law § 130.65[2] ).   Contrary to defendant's contention, County Court did not improvidently exercise its discretion under CPL 60.42(5) in precluding evidence of the results of DNA testing that excluded defendant as the source of semen found in the victim's vagina and on the victim's underwear.   Although a prosecution witness volunteered that the victim stated that her underwear was wet following the alleged acts of nonconsensual intercourse and sexual contact, the prosecutor offered no evidence of the presence of semen within the victim or on her clothing, made no further reference to the wet underwear, and argued on summation that defendant had not ejaculated.   Further, there was no issue concerning defendant's identification.   Thus, because there was no “critical testimony that could be seriously impeached by the test results” (People v. De Oliveira, 223 A.D.2d 766, 768, 636 N.Y.S.2d 441, lv. denied 88 N.Y.2d 1020, 651 N.Y.S.2d 19, 673 N.E.2d 1246), evidence of the presence of semen originating in a person other than defendant was properly excluded as irrelevant (see, People v. Kalaj, 247 A.D.2d 633, 633-634, 669 N.Y.S.2d 358, lv. denied 92 N.Y.2d 880, 678 N.Y.S.2d 27, 700 N.E.2d 565;  People v. Maxwell, 122 A.D.2d 435, 504 N.Y.S.2d 832;  cf., People v. Labenski, 134 A.D.2d 907, 521 N.Y.S.2d 608).

 Defendant's contention that the jury charge concerning interested witnesses was unbalanced and prejudicial to defendant is not preserved for our review (see, People v. Harding, 266 A.D.2d 310, 697 N.Y.S.2d 519, lv. denied 94 N.Y.2d 920, 708 N.Y.S.2d 359, 729 N.E.2d 1158).   In any event, the charge on interested witnesses, which substantially conformed to 1 CJI(N.Y.) 7.03 and 7.04, was properly balanced (see, People v. Bowden, 198 A.D.2d 39, 40, 603 N.Y.S.2d 448;  see also, People v. Arkim, 179 A.D.2d 1019, 1019-1020, 580 N.Y.S.2d 120, lv. denied 79 N.Y.2d 997, 584 N.Y.S.2d 451, 594 N.E.2d 945).   Defendant's contention that the court erred in reinstructing the jury on attempted rape and sexual abuse is likewise unpreserved for our review and, in any event, is without merit.   The court acted within its discretion in responding to a jury request that it “redefine between attempted rape [charged as a lesser-included offense under the rape in the first degree count] and sexual abuse” by rereading the charge on those offenses (see, People v. Molling, 238 A.D.2d 915, 661 N.Y.S.2d 129;  see generally, People v. Weinberg, 83 N.Y.2d 262, 267-268, 609 N.Y.S.2d 155, 631 N.E.2d 97;  People v. Almodovar, 62 N.Y.2d 126, 131-132, 476 N.Y.S.2d 95, 464 N.E.2d 463).

 The contentions of defendant that he was denied a fair trial by prosecutorial misconduct when he was cross-examined and on summation are likewise unpreserved for our review (see, People v. Brinson, 265 A.D.2d 879, 697 N.Y.S.2d 221, lv. denied 94 N.Y.2d 860, 704 N.Y.S.2d 535, 725 N.E.2d 1097), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

Judgment unanimously affirmed.


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