People v. Fabian
| Decision Date | 23 March 1995 |
| Citation | 625 N.Y.S.2d 4,213 A.D.2d 298 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Francisco FABIAN, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
A. Gadlin, for respondent.
W.B. Carney, for defendant-appellant.
Before ROSENBERGER, J.P., and RUBIN, ROSS, NARDELLI and WILLIAMS, JJ.
Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered March 27, 1992, convicting defendant, after a jury trial, of attempted sodomy in the first degree and sexual abuse in the first degree, and sentencing him to concurrent terms of 2 1/2 to 7 1/2 years, and 1 to 3 years, respectively, unanimously affirmed.
The conduct of the court and prosecutor during defendant's opening statement does not require a new trial. While there is a potential burden-shifting effect to an admonition, delivered in the presence of the jury, that a defense opening statement be confined to matters that the defense intends to prove (People v. Robinson, 202 A.D.2d 225, 608 N.Y.S.2d 456, lv. denied 84 N.Y.2d 871, 618 N.Y.S.2d 17, 642 N.E.2d 336), in this case, the remarks of the court and prosecutor were brief, isolated, and innocuous in context (see, People v. Martinez, 207 A.D.2d 284, 615 N.Y.S.2d 383, lv. denied 84 N.Y.2d 908, 621 N.Y.S.2d 526, 645 N.E.2d 1226). Furthermore, the court did not unduly restrict defendant's opening statement, since it expressly gave counsel the option of making precisely the kind of opening statement he had requested to make, to wit, simply restating the People's burden of proof and requesting an acquittal, and counsel chose that option without protest.
Defendant's claim that the court erred in receiving evidence that the victim made "outcries" to various persons, seriatim, is unpreserved and we decline to review it in the interests of justice. Defendant made no objection to the victim's listing of all her various outcries, nor to the arresting officer's testimony about the last of the series of outcries. Defendant made merely generalized objections (see, People v. Rodriguez, 158 A.D.2d 376, 377, 551 N.Y.S.2d 501, lv. denied 75 N.Y.2d 969, 556 N.Y.S.2d 254, 555 N.E.2d 626) to outcry testimony by the victim's relatives, which merely confirmed facts which had already been disclosed to the jury without objection (see, People v. Johnson, 57 N.Y.2d 969, 971, 457 N.Y.S.2d 230, 443 N.E.2d 478). In any event, the rule that a prompt outcry must be made "at the first suitable...
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