Opinion
January 9, 1995
Appeal from the County Court, Nassau County (Thorp, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention the trial court did not improvidently exercise its discretion under CPL 60.42 (5) in precluding evidence concerning the complainant's sexual history. The defense counsel's offer of proof was that evidence concerning the complainant's sexual activities in the two-week period preceding the incident herein, could establish the possibility that semen found on the complainant's bedsheet came from a source other than the defendant. While the People's expert testified that up to 19.4% of the black male population could be a possible source of the semen, the fact remains that defense counsel's offer of proof was based purely on speculation and was, therefore, inadequate (see, People v. Williams, 81 N.Y.2d 303; People v. Mandel, 48 N.Y.2d 952; People v. Laundry, 122 A.D.2d 450; People v. Westfall, 95 A.D.2d 581).
Reversal is also not required on constitutional grounds. The constitutional standard is one of arbitrariness, and the burden rests on the defendant, as the moving party, to make a threshold showing that the evidence sought to be introduced is relevant (see, People v. Williams, 81 N.Y.2d 303, supra). As noted above, the defendant failed to carry that burden of proof.
We also find that the sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).
We have considered the defendant's remaining contentions and find them to be without merit. O'Brien, J.P., Hart, Goldstein and Florio, JJ., concur.