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

664
KA 08-00320
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHESTER J. THOMAS, DEFENDANT-APPELLANT.


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

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Ellen M.
Yacknin, A.J.), rendered December 14, 2007. The judgment convicted
defendant, upon a jury verdict, of criminal sexual act in the first
degree, criminal contempt in the first degree and assault in the third
degree.

     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, inter alia, criminal sexual act in the first
degree (Penal Law § 130.50 [1]). The victim was defendant’s long-time
girlfriend and the mother of his three children. Defendant failed to
preserve for our review his contention that County Court’s Molineux
ruling deprived him of a fair trial (see generally People v Parkinson,
268 AD2d 792, 794, lv denied 95 NY2d 801). In any event, that
contention lacks merit. The court properly admitted evidence of three
prior instances in which defendant engaged in physical abuse against
the victim, inasmuch as such evidence was relevant to establish
defendant’s intent and motive, as well as to provide appropriate
background (see People v Meseck, 52 AD3d 948, 950; People v
Westerling, 48 AD3d 965, 966-968).

     Defendant further contends that he was deprived of a fair trial
when the court sustained the People’s objection to the remark made by
defense counsel on summation, urging the jury to draw a negative
inference from the failure of a certain police officer to testify. We
reject that contention. The victim testified that the officer who
responded following her 911 call informed her that “no judge would
ever believe” that her live-in boyfriend had sodomized her.
Consequently, the victim’s written statement to the police did not
include an allegation of sodomy. At trial, defense counsel attacked
                                 -2-                           664
                                                         KA 08-00320

the victim’s credibility and emphasized that her story had changed
from when she initially reported the incident to when she testified at
trial and alleged that defendant sodomized her. Defense counsel
thereby suggested that the sodomy never occurred because, if it had,
the victim would have reported it to the responding officer. On
summation, defense counsel reiterated that point and further suggested
that the victim lied when she testified that the officer’s statement
that a judge would not believe her allegations dissuaded her from
reporting the sodomy in her written statement. Defense counsel then
argued that, in the event that the officer had in fact made such a
statement to the victim, the officer should have been called to
testify with respect thereto. The objection of the People to defense
counsel’s statement was sustained and the jury was instructed to
disregard the statement.

     “A defendant not necessarily entitled to a missing witness charge
may nonetheless try to persuade the jury to draw inferences from the
People’s failure to call an available witness with material,
noncumulative information about the case” (People v Williams, 5 NY3d
732, 734). In the event that the officer would have merely confirmed
the victim’s story, such testimony would have been cumulative of the
victim’s testimony, and the People were not required to call him as a
witness (see People v Ramos, 305 AD2d 115, lv denied 100 NY2d 586).
Moreover, defendant never made an offer of proof with respect to the
officer’s prospective testimony, and thus there was no good faith
basis to comment on the People’s failure to call him as a witness (see
People v Pepe, 262 AD2d 7, lv denied 93 NY2d 1019, 1024; see also
People v Barton, 19 AD3d 304; People v Holland, 221 AD2d 947, lv
denied 87 NY2d 922).

     Defendant failed to preserve for our review his contention that
the People improperly bolstered the testimony of a witness (see People
v Brown, 82 AD3d 1698, 1700), 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]). Finally, the sentence is not unduly
harsh or severe.




Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
