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People v. Clement

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


March 19, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
RYAN J. CLEMENT, APPELLANT.

Appeal from a judgment of the Lewis County Court (Charles C. Merrell, J.), rendered January 23, 2009. The judgment convicted defendant, upon a jury verdict, of criminal sexual act in the first degree, sexual abuse in the first degree, and endangering the welfare of a child.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, April 28, 2010

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum

Defendant appeals from a judgment convicting him upon a jury verdict of criminal sexual act in the first degree (Penal Law § 130.50 [3]), sexual abuse in the first degree (§ 130.65 [3]), and endangering the welfare of a child (§ 260.10 [1]). Defendant failed to preserve for our review his contention that County Court failed to administer the requisite oath to the prospective jurors pursuant to CPL 270.15 (1) (a) (see People v Perez, 67 AD3d 1324, 1326 [2009], lv denied 13 NY3d 941 [2010]; People v Hampton, 64 AD3d 872, 877 [2009], lv denied 13 NY3d 796 [2009]), 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 the court erred in instructing the jury to disregard the lack of evidence of a physical examination of the victim. There was no testimony concerning such a physical examination or the lack thereof. Thus, the court properly sustained the prosecutor's objection to the comment of defense counsel on summation that no physical examination of the victim was conducted and instructed the jury "not to consider anything that may not be in evidence" (see generally People v Holland, 221 AD2d 947 [1995], lv denied 87 NY2d 922 [1996]). The sentence is not unduly harsh or severe.

Defendant failed to preserve for our review his remaining contentions (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]).

Present---Scudder, P.J., Peradotto, Lindley and Gorski, JJ.

20100319

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