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People v. Smith

181 A.D.2d 701 Court N.Y. App. Div. Decision date 1992-03-02 English

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p. 701
The People of the State of New York, Respondent, v Earl Smith, Appellant.

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered October 26, 1988, convicting him of rape in the first degree (two counts), sodomy in the first degree (two counts), and assault in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that the court erred in refusing to grant the codefendant’s request for an adjournment so that an analysis could be obtained of the specimen taken from the complainant during the gynecological examination at the

p. 702
hospital following the incident is unpreserved for appellate review (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245 , 248-252; People v McKenna, 151 AD2d 510 , revd on other grounds 76 NY2d 59 ).

Any prejudice which might have arisen due to the brief and ambiguous mention by the complainant of an uncharged crime was alleviated when the court sustained the defendant’s objection and gave a prompt and thorough curative instruction (see, People v Santiago, 52 NY2d 865 , 866; People v Ashwal, 39 NY2d 105 , 111; People v Solano, 159 AD2d 738 ).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., Lawrence, Eiber and Miller, JJ., concur.

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