People v. Parkes

Judgment, Supreme Court, Bronx County (Vincent A. Vitale, J.), rendered June 8, 1990, convicting defendant, after a jury trial, of rape in the first degree and sodomy in the first degree, and also convicting him, upon his pleas of guilty, of grand larceny in the third degree and criminal possession of a controlled substance in the third degree and sentencing him to concurrent terms of imprisonment of 7 to 21 years on the rape and sodomy convictions and lesser terms on the other convictions, unanimously affirmed. Defendant stands convicted of raping an 11-year-old and holding her down while a friend sodomized her. We find the proof of guilt to be overwhelming in view of the corroborating testimony of the postal worker who helped the victim immediately after commission of the crimes. The victim’s statements to this witness immediately after the commission of the crimes were properly admitted as evidence of a timely complaint (see, People v Rice, 75 NY2d 929, 931). While similar statements made at a later time to other witnesses were improperly admitted, there was no objection and thus the error is unpreserved. Also unobjected to were the prosecutor’s questions to defendant and other defense witnesses concerning their failure to report their side of the story to the police, and we decline to reach these issues in the interest of justice. It was not error to admit evidence of uncharged sodomies committed by defendant’s friends as part of the narrative (People v Holland, 174 AD2d 508, 509, lv denied 78 NY2d 1011). Nor was it error for the court to refuse a missing witness charge as to the victim’s girlfriend and a retired detective since neither of these witnesses were shown to have material testimony or to be under the prosecutor’s control (see, People v Erts, 73 NY2d 872). [90] We have considered defendant’s other contentions and find them to be without merit or unpreserved for our review. Concur—Carro, J. P., Kupferman, Ross and Asch, JJ.