         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1516
KA 10-01301
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FRANKLIN D. SCHAFER, DEFENDANT-APPELLANT.


LAW OFFICE OF RONALD D. ANTON, NIAGARA FALLS (SCOTT A. STEPIEN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THERESA L. PREZIOSO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Sperrazza, J.), rendered August 13, 2009. The judgment convicted
defendant, upon a jury verdict, of predatory sexual assault against a
child, sexual abuse in the first degree and endangering the welfare of
a child (two 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, inter alia, predatory sexual assault against a
child (Penal Law § 130.96). In response to the jury’s request for a
readback of certain testimony, County Court directed the court
reporter not to read the victim’s testimony concerning uncharged acts
of oral sodomy. Contrary to the contention of defendant, he was not
thereby denied a fair trial. The court had previously granted
defendant’s motion to preclude that testimony, but the six-year-old
victim spontaneously testified with respect to those uncharged acts.
“[T]he failure to read back everything called for by the note did not
‘seriously prejudice[ ]’ defendant . . . because the omitted testimony
was insignificant and provided [no] support for defendant’s defense”
(People v Ingram, 3 AD3d 437, 438, lv denied 2 NY3d 801; see People v
Aller, 33 AD3d 621, 622, lv denied 8 NY3d 918).

     Defendant failed to preserve for our review his further
contention that the court erred in striking the prosecutor from
defendant’s witness list and precluding defendant from calling her as
a witness. Although defendant included the prosecutor on his witness
list and thus requested permission to call her as a witness, that
request was not based upon any of the reasons that he now raises on
appeal. In any event, the contention of defendant is without merit,
“[i]n light of [his] failure to establish that the prosecutor would
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                                                         KA 10-01301

give testimony adverse to the People if called by the defense or that
there was a significant possibility that her testimony was necessary
or relevant to a material issue at trial” (People v Wilhelm, 34 AD3d
40, 54; see People v Garcia, 27 AD3d 398, lv denied 7 NY3d 789; see
generally People v Paperno, 54 NY2d 294).

     Contrary to defendant’s contention, the court properly admitted
in evidence the record of the nurse practitioner’s examination of the
victim, in which the victim described the incident. The examination
“had a dual purpose of investigation and treatment of the victim’s
potential physical and psychological injuries. Because the history
[of the incident] was germane to treatment, it falls within the
traditional business records exception . . ., and the hearsay was
therefore admissible” (People v Rogers, 8 AD3d 888, 892; see People v
Bailey, 252 AD2d 815, 815-816, lv denied 92 NY2d 922).

     Although defendant is correct that he has the right to introduce
evidence of the witnesses’ reputation in the community for veracity
(see generally People v Hanley, 5 NY3d 108), we reject his contention
that the court precluded him from introducing such evidence. On
direct examination, defense counsel asked defendant two questions with
respect to the reputation of the victim and her brother for veracity.
The court properly sustained the prosecutor’s objection to the first
question inasmuch as it was a compound question seeking information
regarding two separate witnesses (see generally Devlin v Hinman, 161
NY 115, 118). The court also properly sustained the prosecutor’s
objection to the second question because it sought information
regarding defendant’s knowledge of whether the victim ever lied, and
“[i]t is well settled that impeachment of a witness by evidence of his
[or her] reputation in the community is limited to his [or her]
reputation for truth and veracity[] and may not extend to . . .
specific acts of dishonesty” (Stanton v Velis, 172 AD2d 415; see
People v Pavao, 59 NY2d 282, 289).

     Defendant further contends that the court erred in refusing to
permit him to testify with respect to the victim’s sexual conduct
pursuant to CPL 60.42. To the extent that defendant contends that he
was thereby denied his right to present a defense, he failed to
preserve his contention for our review (see generally People v Angelo,
88 NY2d 217, 222). Insofar as defendant contends that the court erred
in applying CPL 60.42 in refusing to permit him to testify with
respect to the conduct in question, we conclude that the testimony in
question does “ ‘not fall within any of the exceptions set forth in
CPL 60.42 (1) through (4), and defendant failed to make an offer of
proof demonstrating that such evidence was relevant and admissible
pursuant to CPL 60.42 (5)’ ” (People v Wright, 37 AD3d 1142, 1143, lv
denied 8 NY3d 951; see People v Brink, 30 AD3d 1014, 1015, lv denied 7
NY3d 810). Defendant’s only application pursuant to CPL 60.42
concerned testimony regarding a different incident than the one about
which he attempted to testify, and that testimony was to be given by a
different witness than defendant, for a different purpose than the one
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                                              KA 10-01301

raised on appeal.




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