Opinion
May 7, 1998
Appeal from the Supreme Court (Sheridan, J.).
Defendant's indictment and ultimate conviction emanate from a nonconsensual sexual encounter with his former paramour. After a Ventimiglia hearing, Supreme Court ruled that of the 26 alleged acts of prior misconduct about which the People wished to inquire, only six involving defendant's sexual, physical and verbal abuse of the victim would be permitted. The court reasoned that pursuant to People v. Molineux ( 168 N.Y. 264), these inquiries placed the events at issue in context and assisted the jury in assessing "defendant's intent, motive and state of mind or that of his victim". Following a jury trial, defendant was acquitted of the charges of burglary in the first degree and assault in the third degree while convicted of the crimes noted earlier.
On this appeal, we find the challenge to Supreme Court's Molineaux ruling to be without merit. Notably, the issue was unpreserved for review by the failure to object to the court's ruling at the close of the Ventimiglia hearing and upon the admission of such evidence at trial (see, People v. Southwick, 232 A.D.2d 755, 756, lv denied 89 N.Y.2d 930; People v. Johnson, 213 A.D.2d 791, lv denied 85 N.Y.2d 975). Upon our independent review, we find no basis to warrant a reversal in the interest of justice (see, People v. Hinkley, 178 A.D.2d 821, lv denied 79 N.Y.2d 948). Mindful that it was the People's obligation to establish both the victim's lack of consent and the defendant's forcible compulsion (see, People v. Williams, 81 N.Y.2d 303), the admission of limited instances of prior misconduct by defendant against this victim was not excessive in light of the prosecution's effort to prove a pattern of abuse (see, People v. Hudy, 73 N.Y.2d 40; People v. Molineaux, 168 N.Y. 264, supra).
Since "mere similarity will not ipso facto shield the defendant from use of evidence of a prior crime, [and] the probative value of the prior crime must be established in the first instance, irrespective of any potential prejudice" (People v. Short, 110 A.D.2d 205, 213, lv denied 67 N.Y.2d 657), we find that Supreme Court properly determined that the evidence was offered for a permissible purpose and that, its probative value outweighed any undue risk of prejudice (see, People v. Alvino, 71 N.Y.2d 233; People v. Sudler, 100 A.D.2d 915, lv denied 67 N.Y.2d 657). As to the admission of such evidence, we find no merit to defendant's contention that it was error to have given limiting instructions to the jury before, rather than after, the evidence was received. The record indicates that not only was such instruction given at the time the evidence was offered, it was also given during the charge (see, People v. Johnson, 130 A.D.2d 804, lv denied 70 N.Y.2d 704; cf., People v. Intelisano, 188 A.D.2d 881). Defendant's failure to request otherwise or object to the charge when given precludes further review.
Similarly unpreserved are defendant's claims of prosecutorial misconduct consisting of, inter alia, statements made to the jury that defendant was the victim's "longtime tormentor" (see, People v. Smyth, 233 A.D.2d 746, lv denied 89 N.Y.2d 1015; People v. Southwick, 232 A.D.2d 755, lv denied 89 N.Y.2d 930, supra). Upon our independent review, we decline to exercise our interest of justice jurisdiction since the statements were proper in the context of the proof presented (see, People v. Parker, 220 A.D.2d 815, lv denied 87 N.Y.2d 1023). We further find no error in allowing two friends of the victim to testify to statements she made immediately after the rape since they were properly admitted pursuant to the excited utterance exception to the hearsay rule (see, People v. Fitzgibbon, 166 A.D.2d 745, lv denied 77 N.Y.2d 838; People v. Van Patten, 125 A.D.2d 827, lv denied 69 N.Y.2d 887).
Finally, considering this record in its totality and as of the time of counsel's representation, we are not persuaded that defendant was denied effective assistance of counsel (see, People v. Rivera, 71 N.Y.2d 705, 708; People v. Baldi, 54 N.Y.2d 137, 146-147). While not unmindful of counsel's failure to proffer evidentiary objections (although not precluding our review) and a disjointed closing statement, we find that counsel propounded appropriate motions, presented an adequate opening statement, properly challenged testimony of witnesses and fully participated in the formulation of Supreme Court's charge to the jury. Viewed in its totality, we find the claim of ineffective assistance to be without merit (see, People v. Rivera, supra; People v. Barber, 231 A.D.2d 835; People v. Hill, 225 A.D.2d 902, lv denied 88 N.Y.2d 1021; People v. Johnson, 130 A.D.2d 804, supra).
With defendant's remaining contentions considered and found to be either unpreserved or lacking in merit, the judgment is affirmed.
Mikoll, J.P., Mercure and Yesawich Jr., JJ., concur.
Ordered that the judgment is affirmed.