People v. Dogan

Feb 1, 1991
Versions:170 A.D.2d 955
566 N.Y.S.2d 126
1991 N.Y. App. Div. LEXIS 1667

Judgment unanimously affirmed. Memorandum: A photograph of the. infant victim’s vagina was properly admitted into evidence. Although it was prejudicial, the photo was probative on the issue of penetration, corroborated the victim’s testimony, and illustrated the medical testimony (see, People v Pobliner, 32 NY2d 356, 369, cert denied 416 US 905; People v Brakefield, 156 AD2d 1004, lv denied 75 NY2d 917). Defendant failed to preserve for review any issue concerning the propriety of the court’s charge. In any event, the court’s interested witness charge was proper in all respects (see, People v Agosto, 73 NY2d 963, 967). Defendant’s seven-year-old son, who was under the age of consent, was not "potentially subject to sanctions of a penal character” for his participation in any sexual activity (People v Fielding, 39 NY2d 607, 610). Consequently, the court did not err by not charging the jury that the child was an accomplice whose testimony required corroboration. Upon our review of the record, we determine that the victim’s testimony was sufficiently corroborated (see, People v Groff, 71 NY2d 101), and that the convictions are supported by sufficient evidence and are not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490). (Appeal from Judgment of Supreme Court, Erie County, Kubiniec, J.—Rape, 1st Degree.) Present— Callahan, J. P., Doerr, Boomer, Pine and Balio, JJ.