Opinion
No. KA 06-01776.
February 2, 2007.
Appeal from a judgment of the Cayuga County Court (Peter E. Corning, J.), rendered January 26, 2006. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the first degree (two counts), sexual abuse in the second degree (four counts) and endangering the welfare of a child.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
JAMES B. VARGASON, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present Gorski, J.P., Fahey, Peradotto, Green and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of sexual abuse in the first degree (Penal Law § 130.65) and four counts of sexual abuse in the second degree (§ 130.60 [2]). We reject defendant's contention that reversal is required based upon prosecutorial misconduct. "With respect to the instances of alleged prosecutorial misconduct that are preserved for our review, we conclude that `the conduct of the prosecutor was not so egregious or prejudicial as to deny defendant his right to a fair trial'" ( People v Mastowski, 26 AD3d 744, 746, lv denied 6 NY3d 850, 7 NY3d 815 [2006], quoting People v Dexter, 259 AD2d 952, 954, affd 94 NY2d 847). Defendant failed to preserve for our review his contention with respect to the remaining instances of alleged prosecutorial misconduct during summation ( see CPL 470.05; People v Romero, 7 NY3d 911), and he also failed to preserve for our review his contention that County Court improperly questioned the complainant ( see People v Charleston, 56 NY2d 886, 887). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). The court properly exercised its discretion in precluding defendant from presenting testimony concerning matters that were irrelevant to the charges against him ( see People v Greene, 16 AD3d 350, lv denied 5 NY3d 789). Finally, the court's imposition of a sentence more severe than that offered during plea negotiations does not support the contention of defendant that he was penalized for exercising his right to go to trial ( see People v Taplin, 1 AD3d 1044, 1046, lv denied 1 NY3d 635), and the sentence is not unduly harsh or severe.