People v. Cook

Sep 28, 2001
Versions:286 A.D.2d 917
731 N.Y.S.2d 412
2001 N.Y. App. Div. LEXIS 8988

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him after a jury trial of three counts of rape in the first degree (Penal Law §§ 20.00, 130.35 [1]), four counts of sodomy in the first degree (Penal Law §§ 20.00, 130.50 [1]), five counts of sexual abuse in the first degree (Penal Law §§ 20.00, 130.65 [1]), and one count of attempted sodomy in the first degree (Penal Law §§ 20.00, 110.00, 130.50 [1]). Defendant’s attorney joined in the objection of codefendants to the inflammatory nature of the expert’s testimony, and thus defendant preserved for our review his contention that Supreme Court erred in admitting that allegedly inflammatory testimony. We conclude, however, that defendant’s contention lacks merit. The testimony was admissible to establish that a lack of semen does not preclude a finding that a rape occurred (see, e.g., People v Houston, 250 AD2d 535, 536, lv denied 92 NY2d 983). Defendant failed, however, to join in the other objections of codefendants to the expert’s testimony and thus failed to preserve for our review his remaining contentions concerning the allegedly erroneous admission of that testimony (see, People v Dawson, 50 NY2d 311, 324). We further reject defendant’s contention that the court improperly emphasized an item of the People’s evidence over the evidence presented by defendant. The court merely advised the jurors that, if they *918wished to view the videotaped evidence presented by the People, they would be provided with a VCR. (Appeal from Judgment of Supreme Court, Monroe County, Sirkin, J. — Rape, 1st Degree.) Present — Pigott, Jr., P. J., Hayes, Wisner, Kehoe and Burns, JJ.