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People v. Simmons

Supreme Court of New York, Second Department

May 29, 2013

The People of the State of New York, respondent,
v.
Herbert Simmons, appellant. (Ind. Nos. 2353/09, 125/10)

Randall D. Unger, Bayside, N.Y., for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Roni C. Piplani of counsel), for respondent.

RANDALL T. ENG, P.J., MARK C. DILLON, THOMAS A. DICKERSON, CHERYL E. CHAMBERS, JJ.

DECISION & ORDER

Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (McGann, J.), rendered October 28, 2010, convicting him of rape in the second degree (two counts), criminal sexual act in the second degree, and attempted rape in the second degree under Indictment No. 125/10, after a nonjury trial, and imposing sentence, and (2) a judgment of the same court also rendered October 28, 2010, convicting him of endangering the welfare of a child under Indictment No. 2353/09, after a nonjury trial, and imposing sentence.

ORDERED that the judgments are affirmed.

The defendant contends that he was denied his constitutional rights to present a complete defense and confront witnesses because the trial court did not allow him to fully cross-examine the then-15-year-old victim about a prior sexual encounter with a teenaged boy, which allegedly provided her with a motive to fabricate her accusations against the defendant. However, since the defendant did not assert a constitutional right to introduce the excluded evidence at trial, his constitutional claims are unpreserved for appellate review (see People v Ortiz, 100 A.D.3d 419, 420; People v Simonetta, 94 A.D.3d 1242, 1245; People v Schafer, 81 A.D.3d 1361, 1363). In any event, the court properly limited inquiry into the complainant's past sexual history pursuant to the Rape Shield Law (see CPL 60.42). Although CPL 60.42(5) vests the trial court with the discretion to consider the admission of evidence of a victim's sexual conduct "in the interests of justice" (see People v Halter, 19 N.Y.3d 1046, 1049), here, the limited value in allowing detailed evidence of the complainant's prior sexual encounter to be adduced on cross-examination was outweighed by the complainant's statutory right to confidentiality and the prejudicial nature of the evidence (see People v Scott, 67 A.D.3d 1052, 1055, affd 16 N.Y.3d 589; People v White, 261 A.D.2d 653, 655-656; see also People v Halter, 19 N.Y.3d at 1049). Moreover, the defendant's rights to present a defense and confront witnesses were not unduly curtailed by the court's application of the Rape Shield Law because he was permitted to develop evidence that there had been a prior sexual encounter between the complainant and the teenaged boy, and that this allegedly provided the complainant with a motive to fabricate her accusations (see People v Weinberg, 75 A.D.3d 612, 613; People v Russillo, 27 A.D.3d 493).

The defendant's contention that the counts of Indictment No. 125/10 charging him with rape in the second degree, criminal sexual act in the second degree, and attempted rape in the second degree failed to provide him with fair notice of the dates of the charged crimes is also unpreserved for appellate review (see People v Irvine, 52 A.D.3d 866, 867; People v Albanese, 45 A.D.3d 691, 692; People v Case, 29 A.D.3d 706). In any event, taking into consideration all of the relevant circumstances, including the complainant's age at the times of the commission of the crimes, the repetitive nature of the sexual abuse, and the fact that time is not a material element of any of the crimes, the 30-day time periods set forth in the subject counts provided the defendant with adequate notice (see People v Watt, 81 N.Y.2d 772, 774; People v Persaud, 98 A.D.3d 527, 528; People v Ames, 96 A.D.3d 867; People v Weekes, 71 A.D.3d 1065).

The defendant additionally failed to preserve for appellate review his claim that he was deprived of a fair trial by certain comments made by the prosecutor on summation because he either failed to object to the challenged remarks, or failed to object on the specific grounds raised on this appeal (see CPL 470.05[2]; People v Romero, 7 N.Y.3d 911, 912; People v Crosdale, 103 A.D.3d 749). In any event, the challenged remarks were fair comment on the evidence, constituted a fair response to defense counsel's summation, or otherwise do not warrant reversal (see People v Halm, 81 N.Y.2d 819, 821; People v Galloway, 54 N.Y.2d 396, 401; People v Morency, 104 A.D.3d 877; People v Crosdale, 103 A.D.3d 749; People v Birot, 99 A.D.3d 933, People v Torres, 96 A.D.3d 881, 882).

ENG, P.J., DILLON, DICKERSON and CHAMBERS, JJ., concur.


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