Opinion
(1158) KA 00-01550.
September 28, 2001.
(Appeal from Judgment of Supreme Court, Erie County, Tills, J. — Rape, 1st Degree.)
PRESENT: PINE, J.P., HAYES, HURLBUTT, BURNS AND GORSKI, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of sexual abuse in the first degree (Penal Law § 130.65), three counts each of rape in the first degree (Penal Law § 130.35), endangering the welfare of a child (Penal Law § 260.10), and sodomy in the first degree (Penal Law § 130.50), and one count of incest (Penal Law § 255.25). We reject defendant's contention that Supreme Court erred in permitting three children to testify under oath. The court conducted a proper colloquy to determine that those witnesses understood the nature of an oath ( see, CPL 60.20 [former (2)]; People v Parks, 41 N.Y.2d 36, 46; People v. Nisoff, 36 N.Y.2d 560, 565-566). Furthermore, defendant received meaningful representation ( see, People v. Benevento, 91 N.Y.2d 708, 712; People v. Baldi, 54 N.Y.2d 137, 147).
Defendant further contends that the court erred in admitting the hearsay testimony of the brother of one of the victims. Contrary to defendant's contention, the testimony of that witness merely set forth the sequence of events and was offered to establish that statements had been made, not to establish the details set forth therein ( see, People v. Mastin, 261 A.D.2d 892, 894, lv denied 93 N.Y.2d 1022). Defendant failed to preserve for our review his further contention that the testimony of that witness bolstered his sister's testimony ( see, CPL 470.05), and 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 also failed to preserve for our review his contentions concerning allegedly improper comments made by the prosecutor and the court ( see, People v. Zhi Qiang Li, 275 A.D.2d 803, lv denied 96 N.Y.2d 740; People v. Chase, 265 A.D.2d 844, 844-845, lv denied 94 N.Y.2d 902). In addition, he failed to preserve for our review his contentions that the examining physician was improperly permitted to discuss the subjective statements of the victims and that the indictment was jurisdictionally defective. 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]).
We reject defendant's contention that the sentence is illegal. "[A]lthough the aggregate sentence imposed exceeds the maximum aggregate term set forth in Penal Law § 70.30 (1) (e) (vi), that section does not require that we modify the sentence" ( People v. Printup, 255 A.D.2d 1000, 1001, lv denied 92 N.Y.2d 1037). That section "requires only that the Department of Correctional Services determine the aggregate maximum length of imprisonment consistent with the applicable statutory limitation" ( People v. Bachman, 158 A.D.2d 930, lv denied 75 N.Y.2d 963). Furthermore, the sentence is neither unduly harsh nor severe. We have reviewed defendant's remaining contentions and conclude that they are without merit.