People v. Sherman

• Decision Date: 07 May 1998
• Citation: 672 N.Y.S.2d 266,250 A.D.2d 873
• Parties: 1998 N.Y. Slip Op. 4397 The PEOPLE of the State of New York, Respondent, v. Ronald R. SHERMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 266

672 N.Y.S.2d 266

1998 N.Y. Slip Op. 4397

The PEOPLE of the State of New York, Respondent, v. Ronald R. SHERMAN, Appellant.

Supreme Court of New York, Appellate Division Third Department.

May 7, 1998.

Richard Castellane, Hamilton, for appellant.

Melissa C. Stearns, District Attorney, Wampsville, for respondent.

Before CARDONA, P.J., and MIKOLL, CREW, WHITE and CARPINELLO, JJ.

WHITE, Justice.

Appeal from a judgment of the County Court of Madison County (O'Brien III, J.), rendered July 29, 1996, upon a verdict convicting defendant of the crime of sodomy in the second degree.

We affirm defendant's conviction of the crime of sodomy in the second degree perpetrated against his 12-year-old stepdaughter. County Court did not err in refusing to allow defendant to cross-examine the victim regarding allegations of sexual abuse she made against her biological father as there was no showing that the allegations were false (see, People v. Mandel, 48 N.Y.2d 952, 953, 425 N.Y.S.2d 63, 401 N.E.2d 185, appeal dismissed, cert. denied 446 U.S. 949, 100 S.Ct. 2913, 64 L.Ed.2d 805; People v. Sprague, 200 A.D.2d 867, 606 N.Y.S.2d 815, lv. denied 83 N.Y.2d 877, 613 N.Y.S.2d 137, 635 N.E.2d 306). Inasmuch as the victim's lack of consent resulted solely from her age, her sworn testimony did not have to be corroborated (see, Penal Law § 130.16; see also, People v. Hudy, 73 N.Y.2d 40, 48, 538 N.Y.S.2d 197, 535 N.E.2d 250; People v. Bolden, 194 A.D.2d 834, 835, 598 N.Y.S.2d 603, lv. denied 82 N.Y.2d 714, 602 N.Y.S.2d 811, 622 N.E.2d 312). County Court acted well within its discretion in not submitting the count of endangering the welfare of a child to the jury since it was a noninclusory concurrent count (see, CPL 300.30[4]; 300.40[3]; see also, People v. Abair, 134 A.D.2d 743, 746, 521 N.Y.S.2d 560, lv. denied 70 N.Y.2d 1003, 526 N.Y.S.2d 938, 521 N.E.2d 1081). In any event, defendant's argument on this point was not preserved for our review (see, CPL 300.50, 470.05[2] ). Lastly, upon the exercise of our factual review powers we are satisfied that the verdict is not against the weight of the evidence since the victim's testimony that defendant sodomized her and defendant's denial merely created a credibility issue for the jury's resolution (see, People v. Roe, 235 A.D.2d 950, 952, 653 N.Y.S.2d 966, lv. denied 89 N.Y.2d 1099, 660 N.Y.S.2d 393, 682 N.E.2d 994; People v. Corbett, 208 A.D.2d 1059, 617 N.Y.S.2d 573).

ORDERED that the judgment is affirmed.

CARDONA...