People v. Smith

Mar 21, 2001
Versions:281 A.D.2d 957
722 N.Y.S.2d 850
2001 N.Y. App. Div. LEXIS 2827

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of two counts each of rape in the first degree (Penal Law § 130.35 [1]) and *958incest (Penal Law § 255.25). We reject defendant’s contention that Supreme Court abused its discretion in precluding cross-examination of the complainant concerning a prior allegation of sexual abuse against her father. “[E]vidence 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 Hamel, 174 AD2d 837, quoting People v Harris, 132 AD2d 940, 941). The preclusion of such questioning does not constitute an abuse of discretion where, as here, defendant made no showing that the prior allegation was false (see, People v Mandel, 48 NY2d 952, 953, appeal dismissed and cert denied 446 US 949, reh denied 448 US 908; People v Gozdalski, 239 AD2d 896, 897, lv denied 90 NY2d 858). Defendant abandoned his equivocal request to proceed pro se, and thus his further contention that the court erred in denying that request is not properly before us (see, People v Branch, 155 AD2d 473, 474, lv denied 75 NY2d 867; see also, People v Ramsey, 201 AD2d 915, lv denied 83 NY2d 875). (Appeal from Judgment of Supreme Court, Monroe County, Sirkin, J. — Rape, 1st Degree.) Present — Pine, J. P., Hayes, Hurlbutt, Scudder and Lawton, JJ.