People v. Roman

182 A.D.2d 1085 | N.Y. App. Div. | 1992

Judgment unanimously affirmed. Memorandum: Defendant contends that the trial court erred in admitting, over objection, testimony that complainant told a third party that she had been raped. The People concede that the admission of that hearsay testimony was error (see, Richardson, Evidence § 200 [Prince 10th ed]; People v Trow-bridge, 305 NY 471, 475), but contend that the error was harmless. From our review of the record, we agree (see, People v Crimmins, 36 NY2d 230, 242). There was overwhelming evidence of defendant’s guilt based on the complainant’s credible testimony and corroborative physical evidence of the rape, including complainant’s ripped clothing, her prompt complaint and hysterical condition immediately after the incident, and the observations by several witnesses that complainant had red marks on her neck (see, People v Johnson, 57 NY2d 969, 970-971; People v Rivera, 132 AD2d 956). We further conclude that there is no significant probability that the jury would have acquitted defendant but for that error. That testimony was cumulative of other properly admitted evidence of her prompt complaint and did not add anything to her account of the incident (see, People v Johnson, supra).

Defendant further contends that the court’s erroneous charge on the resolution of inconsistencies in the testimony misled the jury and shifted the People’s burden of proof. Defendant failed to object to that portion of the charge and therefore the alleged error has not been preserved for our review (see, CPL 470.05 [2]), and we decline to consider it as a matter of discretion in the interest of justice (see, CPL 470.15 [6]). (Appeal from Judgment of Supreme Court, Erie County, Kubiniec, J. — Rape, 1st Degree.) Present — Boomer, J. P., Pine, Lawton, Boehm and Davis, JJ.