People v. Kise

Judgment unanimously reversed as a matter of discretion in the interest of justice and new trial granted. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of sodomy in the second degree (Penal Law § 130.45), sexual abuse in the second degree (Penal Law § 130.60 [2]) and two counts of endangering the welfare of a child (Penal Law § 260.10 [1]). We conclude that defendant was denied a fair trial by the admission of testimony that he had an ongoing sexual relationship with the 11-year-old complainant (see, People v Lewis, 69 NY2d 321 ) and by the prosecutor’s reference to that testimony on summation (see, People v Harris, 150 AD2d 723 , 726). We reject the People’s contention that the evidence was probative of a count of endangering the welfare of a child; that count did not charge continuing offenses over a period of time (cf., People v Keindl, 68 NY2d 410 , 421, rearg denied 69 NY2d 823 ). The admission of evidence offered to demonstrate defendant’s propensities and to enhance the credibility of the complainant was improper (see, People v Lewis, supra, at 327-328 ; People v Harris, supra, at 725-726 ). We also reject the People’s contention that the proof of guilt is overwhelming and thus that the error is harmless (cf., People v Myers, 185 AD2d 695 ), and we conclude that the references to the sexual relationship were “likely to divert the jury’s attention from the specific offenses charged in the indictment” (People v Mediak, 217 AD2d 961 , 962, lv denied 87 NY2d 848 ). We have reviewed the remaining contentions of defendant and conclude that they are without merit. (Appeal from Judgment of Seneca County Court, Bender, J. — Sodomy, 2nd Degree.) Present — Pigott, Jr., P. J., Wisner, Scudder and Lawton, JJ.