People v Spencer

People v Spencer 2007 NY Slip Op 07529 [44 AD3d 422] October 11, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

The People of the State of New York, Respondent,
v
Gary Spencer, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (John Schoeffel of counsel), and White & Case LLP, New York (Patrick J. Eyers of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), for respondent.

Judgment, Supreme Court, New York County (Joan C. Sudolnik, J.), rendered March 4, 2005, convicting defendant, after a jury trial, of attempted rape in the first degree, and sentencing him to a term of 3½ years, unanimously affirmed.

By failing to object, or by making general objections (see e.g. People v Harris, 98 NY2d 452, 492 [2002]; People v Gonzalez, 55 NY2d 720 [1981]), defendant failed to preserve any of his challenges to the prosecutor's impeachment of the victim's trial testimony by means of her prior written statement and her grand jury testimony, and any of his various related claims. We decline to review these arguments in the interest of justice. Were we to review them, we would find that the victim's testimony was not merely unhelpful, but affirmatively damaged the People's case by negating the element of force, thus allowing the People to impeach her (see CPL 60.35 [1]; People v Fitzpatrick, 40 NY2d 44, 51-52 [1976]). We would also conclude that the court gave the jury a proper limiting instruction with regard to this evidence (see CPL 60.35 [2]). Any error in the method in which the impeaching materials were used was harmless. Defendant's remaining claims are without merit. Concur—Tom, J.P., Mazzarelli, Friedman, Sullivan and Nardelli, JJ.