People v. Velasquez
| Citation | 141 A.D.2d 882,530 N.Y.S.2d 208 |
| Parties | The PEOPLE, etc., Respondent, v. Tony VELASQUEZ, Appellant. |
| Decision Date | 27 June 1988 |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Frederick N. Saal, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Leonard Joblove and Deborah Sachs, of counsel), for respondent.
Before BROWN, J.P., and KUNZEMAN, RUBIN and KOOPER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered March 18, 1986, convicting him of rape in the first degree (four counts), rape in the second degree (four counts), sodomy in the first degree (two counts), sodomy in the second degree (two counts), assault in the third degree, sexual abuse in the first degree (three counts) and sexual abuse in the second degree (four counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
In this case in which the defendant was charged with raping and sodomizing his 13-year-old stepdaughter on three separate occasions the defendant contends that the trial court erred in admitting evidence of a prior Family Court proceeding. The record reveals, however, that he acquiesced in the curative instructions given by the court. As a consequence, the issue is not preserved for appellate review ( see, People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276; People v. Corley, 140 A.D.2d 536, 528 N.Y.S.2d 343; People v. Jalah, 107 A.D.2d 762, 484 N.Y.S.2d 116). In any event, we conclude that the instruction had the intended curative effect ( see, People v. Arce, 42 N.Y.2d 179, 397 N.Y.S.2d 619, 366 N.E.2d 279).
The purported impropriety of permitting the prosecutor to elicit evidence of past attacks by the defendant on his wife was, likewise, unpreserved for appellate review. In any case, we conclude that this evidence was probative of the victim's state of mind and relevant to prove that the defendant used forcible compulsion ( see, People v. Barlow, 88 A.D.2d 668, 669, 451 N.Y.S.2d 254). The testimony rebutting the defendant's alibi elicited by the prosecution was also properly admissible. The testimony related to an error in the defense witness's testimony, which involved a material issue in the case (i.e., the whereabouts of the defendant on the day of one of the alleged rapes); it was therefore not collateral ( see, People v. Schwartzman, 24 N.Y.2d 241, 299 N.Y.S.2d 817, 247 N.E.2d 642; People v. Green, 121 A.D.2d 739, 504 N.Y.S.2d 460, lv. denied 68 N.Y.2d 813, 507 N.Y.S.2d 1030, 499 N.E.2d 879).
Finally, the defendant failed to properly object at trial to the prosecutor's opening and closing statements...
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Gezzi v. State
...operation and on question of coercion to show system of the crime, activity, identity, motive, and context); People v. Velasquez, 141 A.D.2d 882, 530 N.Y.S.2d 208 (2 Dept.1988) (state of mind); People v. Bagarozy, 132 A.D.2d 225, 522 N.Y.S.2d 848 (1 Dept.1987) (noting the general 404(b) exc......
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Jones v. Stinson
...[was] not preserved for appellate review" before discussing alternative holding on the merits (reviewing People v. Velasquez, 141 A.D.2d 882, 883, 530 N.Y.S.2d 208, 208 (2d Dep't 1988))). In sum, because the Appellate Division decision fairly appears to rest primarily on the merits of Jones......
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...of the merits of the claims by stating that "in any event" and "in any case" they were without merit. People v. Velasquez, 141 A.D.2d 882, 883, 530 N.Y.S.2d 208 (N.Y.App.Div.1988). Glenn argues that the Appellate Division in this case did not similarly make clear that its holding on the mer......
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...by the defendant on the complainant and the material issues of forcible compulsion and lack of consent. People v. Velasquez, 141 A.D.2d 882, 530 N.Y.S.2d 208 (2d Dept.1988); People v. DeLeon, 135 A.D.2d 555, 521 N.Y.S.2d 777 (2d Dept.1987). Once this showing is made, the trial court must th......