Opinion
May 11, 2000.
Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered July 7, 1999, convicting defendant, after a jury trial, of sodomy in the first degree, sexual abuse in the second degree and endangering the welfare of a child, and sentencing him to concurrent terms of 2 to 6 years, 1 year, and 1 year, unanimously affirmed. The matter is remitted to Supreme Court, New York County for further proceedings pursuant to CPL 460.50(5).
Sheryl Feldman, for respondent.
Joseph C. Heinzmann, Jr., for defendant-appellant.
NARDELLI, J.P., TOM, MAZZARELLI, WALLACH, ANDRIAS, JJ.
The verdict as to all three counts was based on legally sufficient evidence and was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490). Issues concerning credibility and the evaluation of expert testimony were properly placed before the jury and there is no basis upon which to disturb its determinations.
The court properly exercised its discretion in denying defendant leave to recall one of his witnesses for the purpose of developing remote and speculative evidence (see, People v. Bott, 234 A.D.2d 625, 626, lv denied, 89 N.Y.2d 1009). We note that defendant was afforded ample scope to present the theory of defense to which the proffered evidence purportedly related.
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.