174 A.D.2d 837 | N.Y. App. Div. | 1991
Appeal from a judgment of the County Court of Fulton County (Mazzone, J.), rendered January 9, 1990, upon a verdict convicting defendant of the crime of rape in the first degree.
On appeal from his conviction of first degree rape, defendant contends that County Court erroneously precluded him from cross-examining the complainant concerning whether she had made prior false claims of rape and that he was unduly prejudiced by the delay in the production of Rosario material consisting of the serologist’s handwritten notes. We disagree.
As to defendant’s first claim, we note that in People v Mandel (48 NY2d 952, cert denied, appeal dismissed 446 US 949) the Court of Appeals held that evidence of a victim’s prior complaint of a sex crime does not come within the proscriptive scope of CPL 60.42; therefore, its "admissibility rests within the discretion of the trial court” (People v Harris, 132 AD2d 940, 941, lv denied 74 NY2d 810). Inasmuch as defendant sought to impeach the complainant’s credibility through the use of multiple hearsay (see, People v Hicks, 154 AD2d 713, 714), without an adequate factual basis for believing that the prior complaint was false (see, People v Lippert, 138 AD2d 770, 771), we see no abuse of County Court’s discretion in denying defendant’s motion to permit cross-examination of the complainant about a prior incident of attempted rape (see, supra).
With respect to defendant’s remaining argument, the prosecution admits that the serologist’s notes were not turned over to the defense before the prosecutor’s opening statement as required (see, CPL 240.45 [1] [a]; People v Rosario, 9 NY2d 286, cert denied 368 US 866). By failing to move for a mistrial or
Mahoney, P. J., Weiss, Levine and Harvey, JJ., concur. Ordered that the judgment is affirmed.
