Opinion
December 30, 1999
Appeal from Judgment of Onondaga County Court, Mulroy, J. — Sexual Abuse, 1st Degree.
Judgment unanimously affirmed.
PRESENT: LAWTON, J. P., HAYES, WISNER, HURLBUTT AND BALIO, JJ.
Memorandum:
Defendant failed to challenge as pretextual the prosecutor's reason for peremptorily challenging an African-American prospective juror and thus failed to preserve his present contention for our review ( see, People v. Holman, 216 A.D.2d 488, lv denied 86 N.Y.2d 796). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15[a]).
Defendant further contends that prosecutorial misconduct during cross-examination of defendant denied him a fair trial. Defendant effectively waived his objection to the prosecutor's reference to 911 call records not in evidence by objecting only on untenable discovery grounds ( see, People v. Burnett, 106 A.D.2d 920, 921). In any event, County Court properly admonished the jury concerning the reference to 911 records not in evidence. It was not improper to ask whether prosecution witnesses were mistaken ( see, People v. Morris, 267 A.D.2d 1032 [decided herewith]; People v. Weatherly, 246 A.D.2d 340, 341, lv denied 91 N.Y.2d 946; People v. Overlee, 236 A.D.2d 133, 138-139, lv denied 91 A.D.2d 976). Except for a single objection that was sustained, defendant failed to preserve for our review his contention that the prosecutor improperly asked him on cross-examination whether prosecution witnesses were lying ( cf., People v. Paul, 212 A.D.2d 1020, 1021, lv denied 85 N.Y.2d 912; People v. Jarrells, 190 A.D.2d 120, 125). In any event, we conclude that defendant was not thereby denied a fair trial ( see, People v. Crump, 254 A.D.2d 742, 742-743, lv denied 92 N.Y.2d 1030, 93 N.Y.2d 968; People v. Chislum, 244 A.D.2d 944, lv denied 91 N.Y.2d 924).
The court erred in admitting in evidence photographs taken during an unlawful warrantless search of defendant's apartment ( see, People v. Bost, 264 A.D.2d 425 [decided Aug. 9, 1999]). Those photographs, however, are merely cumulative of other evidence, and thus their admission is harmless error ( see, People v. Crimmins, 36 N.Y.2d 230, 237).
According the jury's resolution of credibility issues the great deference to which it is entitled ( see, People v. Bleakley, 69 N.Y.2d 490, 495; People v. Yourdon, 149 A.D.2d 974, 975, lv denied 74 N.Y.2d 749), we conclude that the verdict is not against the weight of the evidence.
With regard to the issues raised in defendant's pro se supplemental brief, by failing to move to dismiss the indictment within five days after his arraignment, defendant waived his contention that he was wrongfully denied the opportunity to appear before the Grand Jury ( see, CPL 190.50[c] ; People v. Halm, 180 A.D.2d 841, 842, affd 81 N.Y.2d 819; People v. Duran, 266 A.D.2d 230 [decided Nov. 1, 1999]); the verdict acquitting defendant of attempted rape in the first degree and convicting him of sexual abuse in the first degree is not repugnant ( see, People v. Pilich, 128 A.D.2d 903, lv denied 70 N.Y.2d 653); and the sentence is neither unduly harsh nor severe.