People v Byron Shelton

People v Shelton 2004 NY Slip Op 01056 [1 NY3d 614] February 19, 2004 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 19, 2004

[*1] The People of the State of New York, Respondent,
v
Byron Shelton, Appellant.

Decided February 19, 2004

People v Shelton, 307 AD2d 370, affirmed.

APPEARANCES OF COUNSEL

William G. Kastin, New York City, and Lynn W.L. Fahey, for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Jennifer Hagan of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant's claim that the trial court misapplied the "prompt outcry" exception to the hearsay rule when it permitted the complainant's daughter to testify lacks merit. An outcry of rape is prompt if made "at the first suitable opportunity" (People v O'Sullivan, 104 NY 481, 486 [1887]) and "is a relative concept dependent on the facts" (People v McDaniel, 81 NY2d 10, 17 [1993]). In determining that the complaint here was prompt, the trial court properly considered that the rape occurred late at night, that defendant warned complainant not to tell anyone, and that defendant lived in the same apartment building as the 81-year-old complainant.

Defendant's preserved objections to the prosecutor's summation do not merit reversal of the conviction. [*2]

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.