PEOPLE v. MURRAY

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Patrick S. MURRAY, Defendant-Appellant.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, MARTOCHE, SMITH, AND PINE, JJ. J. Scott Porter, Seneca Falls, for Defendant-Appellant. R. Michael Tantillo, District Attorney, Canandaigua, for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him, following a jury trial, of various crimes arising out of his sexual assault of a 14-year-old boy.   Defendant contends that he was denied his right to be present during a sidebar conference concerning a prospective juror.   The record establishes that defendant waived his right to be present during that sidebar conference (see People v. Williams, 92 N.Y.2d 993, 996, 684 N.Y.S.2d 163, 706 N.E.2d 1187;  People v. Lucious, 269 A.D.2d 766, 767, 704 N.Y.S.2d 758).   Defendant failed to preserve for our review his contention that the victim's testimony was bolstered by the testimony of the girlfriend of the victim's brother (see People v. Bridgefourth, 13 A.D.3d 1165, 1167, 787 N.Y.S.2d 535), 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 reject defendant's further contention that County Court erred in allowing the People to recall the victim to enable him to testify that he did not make a certain statement to defendant.   A police officer previously testified that defendant told him that the victim had made such a statement, and the court did not abuse its discretion in allowing the People to recall the victim to rebut that testimony (see generally People v. Rostick, 244 A.D.2d 768, 666 N.Y.S.2d 235, lv. denied 91 N.Y.2d 929, 670 N.Y.S.2d 411, 693 N.E.2d 758).

 The court properly permitted the People to impeach their own witness with a prior inconsistent statement inasmuch as “the testimony of that witness [was] on a material issue [and] affirmatively damage[d] the People's case” (People v. Lawrence, 227 A.D.2d 893, 894, 643 N.Y.S.2d 273;  see CPL 60.35[1] ).   Defendant failed to preserve for our review his further contention that the prosecutor improperly impeached a defense witness with proof of a juvenile delinquency adjudication (see CPL 470.05[2] ), 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] ).   Nor can it be said that defendant was deprived of his right to a fair trial by prosecutorial misconduct (see People v. Rubin, 101 A.D.2d 71, 474 N.Y.S.2d 348, lv. denied 63 N.Y.2d 711, 480 N.Y.S.2d 1038, 469 N.E.2d 114).   Defendant failed to preserve his contention for our review with respect to most of the instances of alleged misconduct and, in any event, the alleged misconduct was not so pervasive and egregious to warrant reversal (see People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001, lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: