Opinion
9441.
November 2, 2006.
Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered August 18, 2004, convicting defendant, after a jury trial, of two counts of sodomy in the first degree, and sentencing him to concurrent terms of nine years, unanimously modified, on the law, to the extent of vacating the provisions for DNA databank and sex offender registration fees, and otherwise affirmed.
Before: Tom, J.P., Mazzarelli, Andrias, Sweeny and Malone, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility.
The court properly exercised its discretion in permitting the prosecutor to impeach defendant by means of his omission, from his grand jury testimony, of significant facts to which he testified at trial concerning the behavior of the victim and her mother in the aftermath of the alleged sodomy. Since the omitted information was highly relevant to the credibility of the allegations against defendant, it would have been unnatural to omit those claims from the exculpatory narrative he provided to the grand jury ( see People v Savage, 50 NY2d 673, cert denied 449 US 1016; People v Montalvo, 285 AD2d 384, lv denied 96 NY2d 941; compare People v Bornholdt, 33 NY2d 75, 88, cert denied sub nom. Victory v New York, 416 US 905).
We perceive no basis for reducing the sentence.
Since defendant committed the instant crime prior to the effective dates of amendments to Penal Law § 60.35 providing for the imposition of DNA databank and sex offender registration fees, defendant's sentence is unlawful to the extent indicated.