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People v. Walker

286 A.D.2d 945 Court N.Y. App. Div. Decision date 2001-09-28 English

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p. 945
The People of the State of New York, Respondent, v Matthew J. Walker, Appellant.
[730 NYS2d 759]

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of four counts of sodomy in the second degree (Penal Law former § 130.45)

p. 946
and one count each of sexual abuse in the second degree (Penal Law § 130.60 [2]) and endangering the welfare of a child (Penal Law § 260.10 [1]). Defendant failed to preserve for our review his contention that, because the physician’s opinion was based on an unidentified study that was not received in evidence (see, CPL 470.05 [2]; People v Reid, 281 AD2d 986 ), County Court erred in admitting the testimony of the physician who examined the victim. We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). Contrary to defendant’s further contention, the testimony of the expert that her findings were consistent with sexual abuse was properly admitted (see, People v Harris, 249 AD2d 775 , 776; see also, People v Taylor, 75 NY2d 277 , 288).

We reject defendant’s contention that the sentences imposed on the convictions of four counts of sodomy in the second degree may not run consecutively. Each act of sodomy “involved a separate sexual act constituting a distinct offense” and thus the court properly imposed consecutive terms of incarceration (People v Gersten, 280 AD2d 487 , 488; see, People v Smithers, 255 AD2d 916 , 917, lv denied 92 NY2d 1054 ; see generally, Penal Law § 70.25 [2]). Finally, the sentence is neither unduly harsh nor severe. (Appeal from Judgment of Oneida County Court, Dwyer, J. — Sodomy, 2nd Degree.) Present — Pigott, Jr., P. J., Pine, Wisner, Burns and Lawton, JJ.

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