upholding sentence for sodomy when sentencing judge referred to "Biblical times" and expressed his opinion about the seriousness of the crimeSummary of this case from State v. Arnett
Argued January 8, 1993
Decided February 23, 1993
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, William A. Danaher, Jr., J.
Henry J. Halm, New York City, appellant pro se. James T. Hayden, District Attorney of Chemung County, Elmira, for respondent.
The order of the Appellate Division should be affirmed.
Defendant was convicted on five counts of sodomy in the third degree and three counts of endangering the welfare of a child. The convictions followed testimony by four teenage boys that defendant had shown them pornographic films in his home, masturbated before them, solicited sex from them and engaged two of them in acts of sodomy. He was sentenced by Chemung County Court to five consecutive prison terms of 1 1/3 to 4 years.
Defendant has failed to show that remarks by the prosecutor during summation had "a decided tendency to prejudice the jury" (People v Ashwal, 39 N.Y.2d 105, 110). The prosecutor's reference to defendant's failure to testify was followed by a curative instruction, and his portrayal of the complainants in the closing statement, when viewed in the context of the entire trial, fell within the latitude afforded to attorneys in advocating their cause (id., at 109, quoting Williams v Brooklyn El. R.R. Co., 126 N.Y. 96, 102). Moreover, the prosecutor's closing statement must be evaluated in light of the defense summation, which put into issue the complainants' character and credibility and justified the People's response.
Similarly, defendant's claim that community sentiment and religious beliefs were inappropriately considered by the Judge in imposing sentence is not borne out by the record. The sentencing statement, read in context, was unobjectionable (compare, United States v Bakker, 925 F.2d 728, 740-741).
Finally, we find no merit to defendant's contention that the age of consent established by the Legislature is unconstitutional.
Defendant's other arguments are without merit.
Acting Chief Judge SIMONS and Judges KAYE, TITONE, HANCOCK, JR., BELLACOSA and SMITH concur.
Order affirmed in a memorandum.