PEOPLE v. REID

Reset A A Font size: Print

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Sean D. REID, Defendant-Appellant.

Decided: March 21, 2001

PRESENT:  PINE, J.P., WISNER, HURLBUTT, SCUDDER and KEHOE, JJ. Mary T. Sullivan, for defendant-appellant. Donna A. Milling, Rochester, for plaintiff-respondent.

Defendant was convicted following a jury trial of rape in the first degree (Penal Law § 130.35[1]) and sexual abuse in the first degree (Penal Law § 130.65[1]) in connection with an incident involving a former girlfriend.   Defendant did not preserve for our review his contentions with respect to the testimony of the examining physician (see, CPL 470.05 [2]), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, CPL 470.15[6][a]).

 Defendant further contends that he was denied a fair trial by alleged prosecutorial misconduct.   We conclude that, although the prosecutor engaged in misconduct in seeking to impeach defendant by questioning him on cross-examination concerning his failure to support an out-of-wedlock child who was “on welfare” (see, Gutierrez v. City of New York, 205 A.D.2d 425, 427, 613 N.Y.S.2d 627), that misconduct did not deny defendant a fair trial (see, People v. Caleb, 273 A.D.2d 881, 881-882, 710 N.Y.S.2d 263, lv. denied 95 N.Y.2d 864, 715 N.Y.S.2d 218, 738 N.E.2d 366).   The other alleged instances of prosecutorial misconduct are not preserved for our review (see, CPL 470.05 [2]), 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]).

 Contrary to defendant's further contention, the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The victim's testimony was not incredible as a matter of law (see, People v. Bell, 234 A.D.2d 915, 915-916, 652 N.Y.S.2d 448, lv. denied 89 N.Y.2d 1009, 658 N.Y.S.2d 247, 680 N.E.2d 621), and the conflicting testimony raised issues of credibility for the jury to resolve (see, People v. Lopez, 231 A.D.2d 934, 935, 648 N.Y.S.2d 365).

Judgment unanimously affirmed.

MEMORANDUM: