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

1323
KA 08-01510
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY S. CURRAN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

TIMOTHY S. CURRAN, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Dennis M.
Kehoe, A.J.), rendered May 16, 2008. The judgment convicted
defendant, upon a jury verdict, of criminal sexual act in the third
degree (six counts) and endangering the welfare of a child (nine
counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of six counts of criminal sexual act in the third
degree (Penal Law § 130.40 [2]) and nine counts of endangering the
welfare of a child (§ 260.10 [1]). Defendant failed to preserve for
our review his contention that County Court erred in denying his
challenge for cause to a prospective juror on the ground that she
expressed an unwillingness to afford him the requisite presumption of
innocence (see CPL 470.05 [2]). Defendant challenged that prospective
juror for cause on another ground, i.e., based on the concern that she
“seemed totally confused the whole time she was out there,” and we
decline to exercise our power to review defendant’s present contention
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]). We reject defendant’s contention that the court improperly
applied the Rape Shield Law (CPL 60.42) in precluding the cross-
examination of two prosecution witnesses with respect to whether the
victim engaged in online conversations with other firemen from the
fire station where defendant was employed. Contrary to defendant’s
contention, such evidence was not relevant to support his defense that
the victim’s testimony was fabricated (see People v Scott, 67 AD3d
1052, 1054-1055, affd 16 NY3d 589; People v Weinberg, 75 AD3d 612,
613, lv denied 15 NY3d 896).
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                                                         KA 08-01510

     Defendant further contends that the court improperly limited his
cross-examination of the victim and another prosecution witness on the
issue whether the victim ever sent defendant a text message containing
a racial slur. We reject that contention. “The probative value of
the testimony that defendant sought to elicit was outweighed by the
possibility of unduly prejudicing the People, confusing the issues, or
misleading the jury” (People v Dean, 299 AD2d 892, 892, lv denied 99
NY2d 613).

     Defendant failed to preserve for our review his contention that
the victim’s testimony concerning her disclosure to her friend about
her relationship with defendant was not a complaint or expression of
outrage sufficient to qualify under the “prompt outcry” exception to
the hearsay rule (see CPL 470.05 [2]), and we decline to exercise our
power to review that contention as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). Although we agree with
defendant that the People failed to establish that the disclosure was
made at the “ ‘first suitable opportunity’ ” (People v McDaniel, 81
NY2d 10, 17, quoting People v O’Sullivan, 104 NY 481, 486), we
conclude that the error is harmless. The proof of defendant’s guilt
is overwhelming, and there is no significant probability that the jury
would have acquitted defendant were it not for the error (see
generally People v Arafet, 13 NY3d 460, 467; People v Crimmins, 36
NY2d 230, 241-242). We note that the victim’s testimony about her own
out-of-court statements did not constitute hearsay and, therefore,
application of the “prompt outcry” exception was not necessary for the
admission of that testimony. However, we are constrained to review
and affirm a judgment of conviction only on those issues decided
adversely to defendant (see People v Concepcion, 17 NY3d 192, 195).
The court’s initial incorrect ruling, that the victim’s testimony
about her own out-of-court statements constituted hearsay, was
actually in defendant’s favor and is therefore not subject to our
review (see id.).

     Defendant also failed to preserve for our review his contention
that the testimony of the prosecution witness about the victim’s
disclosure of her relationship with defendant was not a “prompt
outcry” because it was not made at the first suitable opportunity (see
CPL 470.05 [2]), and we decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]). We reject defendant’s further contention that
the victim’s disclosure about her relationship with defendant to the
prosecution witness was not a sufficient complaint or expression of
“outrage” (see generally People v Bennett, 79 NY2d 464, 472; People v
Taylor, 75 NY2d 277, 286). In any event, we conclude that any error
in the admission of that testimony is harmless (see generally Arafet,
13 NY3d at 467).

     Defendant failed to preserve for our review his contention in his
pro se supplemental brief that the conviction is not supported by
legally sufficient evidence (see People v Gray, 86 NY2d 10, 19).
Contrary to the further contention of defendant in his pro se
supplemental brief, we conclude that, viewing the evidence in light of
the elements of the crimes as charged to the jury (see People v
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                                                         KA 08-01510

Danielson, 9 NY3d 342, 349), the verdict is not against the weight of
the evidence (see generally People v Bleakley, 69 NY2d 490, 495).

     Defendant failed to preserve for our review his contentions in
his pro se supplemental brief that the court erred in admitting
evidence of an uncharged crime and that he was denied a fair trial by
prosecutorial misconduct on summation (see CPL 470.05 [2]), and 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 1, 2013                     Frances E. Cafarell
                                                Clerk of the Court
