Opinion
April 2, 1996
Appeal from the Supreme Court, New York County (Howard Bell, J.).
Defendant's motion for a severance was properly denied as defendant's claim of non-involvement in the incident was not inconsistent, let alone irreconcilable, with codefendant's claim that the sexual encounter was a consensual act between the complainant and only the codefendant ( see, People v. Mahboubian, 74 N.Y.2d 174, 184). Unlike People v. Figueroa ( 193 A.D.2d 452, lv denied 81 N.Y.2d 1072), here, the defendant claiming non-involvement was not implicated by the defendant claiming consent, and thus, the jury could have credited both defenses.
The testimony of the treating doctor and the nurse concerning the victim's statements to them, that she had been raped and sodomized, was properly admitted since it was relevant to treatment and diagnosis ( cf., People v. Jackson, 124 A.D.2d 975, lv denied 69 N.Y.2d 746), and did not exceed the scope of the prompt outcry exception ( see, People v. Aybinder, 215 A.D.2d 181, lv denied 86 N.Y.2d 840). In any event, since the testimony had no logical bearing on the subject defense that defendant was not involved in the incident, any error was harmless ( see, People v Terrence, 205 A.D.2d 301, lv denied 84 N.Y.2d 873).
Since defendant has failed to provide an adequate record to establish that he was denied his right to be present at the announcement of codefendant's verdict and the response to a jury note, his claim is unreviewable ( see, People v. Kinchen, 60 N.Y.2d 772; People v. Arhin, 203 A.D.2d 62, lv denied 83 N.Y.2d 908). Since the court stenographer never noted the presence of any of the defendants on trial except when they testified or addressed the court, the fact that defendant's presence was not noted during codefendant's verdict and the response to a jury note fails to raise any inference that defendant was absent during those portions of the proceedings. Moreover, since defendant's absence at the announcement of codefendant's verdict would not in any way impair his ability to defend the charges against him, it was not a material stage of the trial at which his presence was required ( see, People v. Keller, 215 A.D.2d 502).
The challenged remarks of the prosecutor in summation were fair comment on the evidence, and an appropriate response to defendant's trial strategy of distancing himself from codefendant and attacking the credibility of the victim based on her drug addiction ( see, People v. Galloway, 54 N.Y.2d 396; People v Marks, 6 N.Y.2d 67).
We perceive no abuse of discretion in sentencing.
Concur — Rosenberger, J.P., Wallach, Kupferman, Nardelli and Williams, JJ.