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

282
KA 07-01266
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LAWRENCE PRESHA, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS 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 (Alex R. Renzi,
J.), rendered April 25, 2007. The judgment convicted defendant, upon
a jury verdict, of sodomy in the first degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
reversed as a matter of discretion in the interest of justice and on
the law and a new trial is granted.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of two counts of sodomy in the first degree (Penal
Law former § 130.50 [1], [3]). The victim, who was 12 years old at
the time of the trial, testified that the conduct at issue occurred
six years earlier, during a period in which he lived with defendant
for approximately four months. The victim testified that, after the
sodomy occurred, defendant physically abused him by punching and
kicking him, slamming him against a wall and threatening him, and
throwing him down the stairs. The victim disclosed the conduct at
issue five years after it occurred. In his testimony at trial,
defendant denied that the conduct occurred, and he denied that he had
physically abused the victim.

     We reject defendant’s contention that County Court erred in
allowing the victim to testify that defendant had physically abused
him on one occasion prior to the date of the conduct at issue. That
Molineux evidence was relevant to establish the element of forcible
compulsion (see People v Cook, 93 NY2d 840, 841), and to explain the
victim’s delay in reporting the abuse (see People v Bennett, 52 AD3d
1185, 1187, lv denied 11 NY3d 734). Although the court agreed with
defendant that the evidence was “incredibly prejudicial,” the court
nevertheless properly balanced the probative value of the evidence
against its potential for prejudice to defendant (see People v Alvino,
71 NY2d 233, 242; People v Mosley, 55 AD3d 1371, lv denied 11 NY3d
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856).

     We agree with defendant, however, that the court erred in failing
to issue a limiting instruction to the jury when the evidence was
admitted and during the final jury charge, to minimize the prejudicial
effect of the admission of the evidence (see People v Greene, 306 AD2d
639, 642-643, lv denied 100 NY2d 594). While defendant failed to
preserve his contention for our review (see People v Sommerville, 30
AD3d 1093, 1094-1095), we nevertheless exercise our power to review it
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]). “In a case such as this, where the finding of guilt rests
squarely on the jury’s assessment of the credibility of the victim and
defendant, we cannot say that the error was harmless and did not
affect the jury’s verdict” (Greene, 306 AD2d at 643; see generally
People v Crimmins, 36 NY2d 230, 241-242; cf. Mosley, 55 AD3d at 1372).
We therefore agree with defendant that, under the circumstances of
this case, he was denied a fair trial based on the court’s failure to
give a limiting instruction, and we thus reverse the judgment and
grant a new trial (see Greene, 306 AD2d at 643).

     Finally, defendant contends that the prosecutor engaged in
misconduct during the trial. Defendant failed to preserve for our
review his contention with respect to many of the instances of
prosecutorial misconduct (see People v Scission, 60 AD3d 1391, 1392,
lv denied 12 NY3d 859, rearg denied 13 NY3d 749), and we need not
determine whether he was denied a fair trial based on the alleged
instances that are preserved for our review inasmuch as we are
granting a new trial in any event (cf. People v Milczakowskyj, 73 AD3d
1453, 1454, lv denied 15 NY3d 754; People v Mott, 94 AD2d 415, 418-
419). Nonetheless, we note that the prosecutor improperly questioned
defendant on cross-examination regarding, e.g., the fact that he
impregnated three women within a short amount of time and his failure
to pay child support (see People v Reid, 281 AD2d 986, lv denied 96
NY2d 923). Defendants “may be cross-examined with respect to prior
conduct that affects their credibility” (People v Brazeau, 304 AD2d
254, 256 [internal quotation marks omitted], lv denied 100 NY2d 579;
see People v Walker, 83 NY2d 455, 461), but “persistent questioning of
a defendant on collateral matters which tends to impugn his [or her]
character without being probative of the crime charged constitutes
improper and prejudicial cross-examination” (People v Hicks, 102 AD2d
173, 182; see People v Bhupsingh, 297 AD2d 386, 387-388). The
prosecutor also improperly attempted to refresh the recollection of
defendant during cross-examination when in fact she was attempting to
place the contents of a certain document in evidence that otherwise
was inadmissible (see People v Carrion, 277 AD2d 480, 481, lv denied
96 NY2d 757; People v Kellogg, 210 AD2d 912, 913-914, lv denied 86
NY2d 737). Finally, the prosecutor remarked during summation that the
victim was “so cute” and the “most conscientious, respectful kid [she
had] ever seen.” Such remarks improperly appealed to the sympathy of
the jury (see People v Ballerstein, 52 AD3d 1192, 1194; People v
Bowie, 200 AD2d 511, 512-513, lv denied 83 NY2d 869, 877), and
improperly vouched for the credibility of the victim (see People v
Moye, 12 NY3d 743; Ballerstein, 52 AD3d at 1194). We thus take this
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opportunity to admonish the prosecutor that her “ ‘mission is not so
much to convict as it is to achieve a just result’ ” (People v Bailey,
58 NY2d 272, 277), and that she is “charged with the responsibility of
presenting competent evidence fairly and temperately, not to get a
conviction at all costs” (Mott, 94 AD2d at 418; see Bhupsingh, 297
AD2d at 388).

     All concur except SCUDDER, P.J., and SCONIERS, J., who dissent and
vote to affirm in the following Memorandum: We agree with the
majority that County Court properly exercised its discretion in
allowing the victim to testify that defendant had physically abused
him on one occasion prior to the sexual assault that is the basis for
defendant’s conviction of two counts of sodomy in the first degree
(Penal Law former § 130.50 [1], [3]), one count of which is based on
the age of the victim. We also agree that the court erred in failing
to give a limiting instruction to the jury at the time the evidence
was offered and during the final jury charge, to minimize whatever
prejudice may have resulted from the admission of that testimony. We
nevertheless respectfully disagree with the majority that reversal is
warranted. First, as the majority acknowledges, defendant failed to
preserve this issue for our review (see People v Wright, 5 AD3d 873,
876, lv denied 3 NY3d 651; People v Williams, 241 AD2d 911, lv denied
91 NY2d 837), and we cannot agree with the majority that we should
exercise our power to address the issue as a matter of discretion in
the interest of justice (see CPL 470.15 [6] [a]). Second, even
assuming, arguendo, that defendant preserved the issue for our review,
we conclude that the court’s error is harmless (see generally People v
Crimmins, 36 NY2d 230, 241-242). We therefore vote to affirm.

     The victim testified that, before committing the sexual assault,
defendant tied him to the bed and placed duct tape over his mouth.
After committing the sexual assault, defendant grabbed the six-year-
old victim by the neck, slammed him against the wall, kicked him and
threatened to kill both the victim and the victim’s family if he
reported what had happened. He then threw the victim down the stairs,
followed him down the stairs, kicked him again, and left the
apartment. Thus, even if we were to exercise our power to review this
issue as a matter of discretion in the interest of justice, we
conclude that the victim’s testimony, together with the evidence
regarding the victim’s behavior in the period that followed the sexual
assault, constitutes overwhelming evidence of defendant’s guilt and
that there is not a significant probability that defendant would have
been acquitted if the court had given the appropriate limiting
instruction with respect to the incident of physical abuse that
preceded the sexual assault (see id.).

     We note with respect to the lack of preservation that, although
defendant objected to the victim’s testimony regarding the incident of
physical abuse that occurred prior to the sexual assault, he failed to
request a limiting instruction either at the time of the testimony or
to request that such an instruction be included in the court’s jury
charge, nor did he object to the lack of a limiting instruction in the
court’s charge (see CPL 470.05 [2]; Wright, 5 AD3d at 876; see
generally People v Scission, 60 AD3d 1391, 1392, lv denied 12 NY3d
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                                                         KA 07-01266

859, rearg denied 13 NY3d 749). Inasmuch as defendant had various
opportunities in which to request a limiting instruction or to object
to the absence of such an instruction, thus affording the court the
opportunity to rectify the error, we conclude that the lack of
preservation renders the court’s error a particularly inappropriate
ground on which to grant a new trial as a matter of discretion in the
interest of justice. In addition, with respect to harmless error
analysis, although the credibility of the victim and defendant was
certainly a key issue at trial, we disagree with the majority that the
jury’s verdict was based solely on its assessment of the credibility
of those witnesses. The People also presented the testimony of the
victim’s grandmother and that of an expert that demonstrated, inter
alia, that the victim’s behavior following the attack and his delay in
revealing the assault to others were consistent with the behavior of a
child who had been sexually assaulted.




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
