         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
245
KA 07-01060
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NATALIE D. RIVERS, 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 (Alex R. Renzi,
J.), rendered March 14, 2007. The judgment convicted defendant, upon
a jury verdict, of course of sexual conduct against a child in the
second degree, sexual abuse 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 her
upon a jury verdict of, inter alia, course of sexual conduct against a
child in the second degree (Penal Law § 130.80 [1] [b]) and sexual
abuse in the second degree (§ 130.60 [2]). We reject defendant’s
contention that County Court erred in admitting evidence of uncharged
acts of physical abuse to which the victim was subjected, as well as
acts witnessed by her. Such evidence is admissible “ ‘to explain the
victim’s failure to reveal the ongoing sexual assaults’ ” (People v
Bennett, 52 AD3d 1185, 1187, lv denied 11 NY3d 734; see People v
Bassett, 55 AD3d 1434, 1436, lv denied 11 NY3d 922). Contrary to
defendant’s contention, the court properly weighed the probative value
of the evidence of those uncharged acts against its potential for
prejudice, as demonstrated by the fact that the court admitted
evidence of certain acts while precluding evidence of other acts (see
generally People v Alvino, 71 NY2d 233, 241-242; People v Ventimiglia,
52 NY2d 350, 359-360). In any event, we note that the court provided
the jury with explicit limiting instructions on multiple occasions
concerning the evidence of those uncharged acts, “thus minimizing any
potential prejudice to defendant” (Bassett, 55 AD3d at 1436).

     Defendant further contends that she was deprived of a fair trial
based on numerous instances of prosecutorial misconduct on summation.
Defendant failed to preserve her contention for our review with
                                 -2-                           245
                                                         KA 07-01060

respect to the majority of the alleged instances of prosecutorial
misconduct (see People v Figgins, 72 AD3d 1599, 1600, lv denied 15
NY3d 893; People v Brink, 57 AD3d 1484, 1486, lv denied 12 NY3d 851)
and, in any event, her contention is without merit. Most of the
prosecutor’s comments with which she takes issue “were fair response
to defense counsel’s summation” (Figgins, 72 AD3d at 1600) and, even
assuming, arguendo, that some of the alleged instances were improper,
we conclude that “none was so egregious as to deny defendant a fair
trial” (People v Milczakowskyj, 73 AD3d 1453, 1454, lv denied 15 NY3d
754).




Entered:   March 25, 2011                      Patricia L. Morgan
                                               Clerk of the Court
