People v Al-Sabahi (Abdulmalek)

[*1] People v Al-Sabahi (Abdulmalek) 2009 NY Slip Op 52639(U) [26 Misc 3d 128(A)] Decided on December 29, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 29, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570064/08.

The People of the State of New York, Respondent,

against

Abdulmalek Al-Sabahi, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James D. Gibbons, J.), rendered January 4, 2008, after a jury trial, convicting him of three counts of sexual abuse in the second degree, and imposing sentence.

Per Curiam.

Judgment of conviction (James D. Gibbons, J.), rendered January 4, 2008, affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]; see also People v Romero, 7 NY3d 633 [2006]). There is no basis for disturbing the jury's determinations concerning credibility. The infant complainant's credited testimony was sufficient to establish beyond a reasonable doubt that defendant touched the complainant in a manner proscribed by Penal Law § 130.60(2).

The trial court properly admitted testimony concerning the complainant's statements to her mother since the statements qualified as "prompt outcry" under the circumstances and did not contain unnecessary or impermissible details (see People v McDaniel, 81 NY2d 10, 16-18 [1993]; see also People v Shelton,1 NY3d 614 [2004]). Moreover, we decline to disturb the trial court's determination to preclude defendant from introducing into evidence an ambiguous notation contained in the prosecutor's notes from the complainant's interview. The court providently exercised its discretion in concluding that any probative value in admitting the notation as a purported "prior inconsistent statement" of the complainant was outweighed by the potential of causing jury speculation and confusion because the details of the notation were uncertain and susceptible to distortion (see People v Laboy, 202 AD2d 325 [1994], lv denied 83 NY2d 1005 [1994]). We also decline to disturb the trial court's discretionary determination to permit the People to, in effect, reopen their direct examination of the infant complainant during redirect examination (see People v Sanders, 238 AD2d 215, 216 [1997], lv denied 92 NY2d 882 [1998]; see also People v Melendez, 55 NY2d 445, 451 [1982]).

Defendant's present challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal based upon the prosecutor's comments (see People v D'Alessandro, 184 AD2d 114, 118-9 [1992], lv denied 81 NY2d 884 [1993]; see generally People v Overlee, 236 AD2d 133 [1997], [*2]lv denied 91 NY2d 976 [1998]). While certain statements made by the prosecutor would have been better left unsaid, those statements were not part of a pattern of misconduct and do not warrant reversal (see People v Ortiz, 39 AD3d 423 [2007], lv denied 9 NY3d 925 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 29, 2009