        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

198
KA 07-00943
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT C. HALTER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Stephen R.
Sirkin, A.J.), rendered February 27, 2007. The judgment convicted
defendant, upon a nonjury verdict, of sexual abuse in the first
degree, rape in the second degree, criminal sexual act in the second
degree, and endangering the welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of, inter alia, sexual abuse in the first
degree (Penal Law § 130.65 [3]), and rape in the second degree (§
130.30 [1]). Viewing the evidence in light of the elements of the
crimes in this nonjury trial (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495). Where,
as here, the determination of guilt or innocence requires an
assessment of the credibility of the witnesses, we afford “[g]reat
deference . . . to the fact-finder’s opportunity to view the
witnesses, hear the testimony and observe demeanor” (id.).

     Contrary to defendant’s further contention, County Court properly
applied the Rape Shield Law (CPL 60.42) in precluding evidence of the
alleged prior sexual conduct of one of the victims. “Regardless of
whether the [Rape] Shield Law applied, the connection between the
proffered evidence and the victim’s motive or ability to fabricate
sodomy charges against defendant was so tenuous that the evidence was
entirely irrelevant” (People v Segarra, 46 AD3d 363, 364, lv denied 10
NY3d 816; see generally People v Williams, 81 NY2d 303, 312-315).

     Defendant failed to preserve for our review his further
contention that the court erred in permitting the mother of the
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                                                         KA 07-00943

victims to testify that one of them had reported the incidents to her
(see People v Rodriguez, 284 AD2d 952, lv denied 96 NY2d 924; People v
Graham, 167 AD2d 866, lv denied 77 NY2d 906). Defendant also failed
to preserve for our review his contention that the court failed to
take into account jail time credit to which he is entitled in
determining the duration of the order of protection (see People v
Nieves, 2 NY3d 310, 315-317). We decline to exercise our power to
review those contentions as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]).




Entered:   February 18, 2011                   Patricia L. Morgan
                                               Clerk of the Court
