Opinion
Argued November 17, 1989
Decided December 14, 1989
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Eugene L. Nicandri, J.
Thomas J. Snider for appellant.
Charles A. Gardner, District Attorney (Jane M. Getman of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed. The proposed evidence of prior sexual contact between the complaining witness and her uncle was offered by the defense solely on the theory that it might be admissible to explain testimony of an examining physician that the 11-year-old complainant showed physical signs of sexual abuse. The prosecutor agreed that should the People present such medical testimony, the door might be opened for the proposed evidence in rebuttal. However, defendant could not himself elicit the medical testimony and then argue that he was entitled to present evidence of the victim's prior sexual conduct to refute the very evidence he had just put before the jury.
Defendant's remaining contentions are without merit.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order affirmed in a memorandum.