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People v. Kolupa

13 N.Y.3d 786 Court N.Y. Decision date 2009-09-22 English

Decision Majority — Memorandum. · Concurring — Smith, J. (concurring).

Contents

Majority

p. 786
[916 NE2d 430, 887 NYS2d 536]
The People of the State of New York, Respondent, v Shannon M. Kolupa, Appellant.
Decided September 22, 2009
APPEARANCES OF COUNSEL
Frank J. Nebush, Jr., Public Defender, Criminal Division, Utica {Esther Cohen Lee of counsel), for appellant.
Scott D. McNamara, District Attorney, Utica {Steven G. Cox of counsel), for respondent.

OPINION OF THE COURT

The order of the Appellate Division should be affirmed.

Concurrence

p. 787
Defendant failed to preserve his argument that the People introduced insufficient evidence to corroborate the child victim’s testimony. At the close of the People’s case, the trial court denied defendant’s motion to dismiss and defendant proceeded to present his own evidence. He did not thereafter renew the motion to dismiss at the close of his proof or specifically argue that there was not sufficient corroboration of the victim’s statements. As a result, this issue is not reviewable (see e.g. People v Lane, 7 NY3d 888 , 889 [2006]; People v Payne, 3 NY3d 266 , 273 [2004]; People v Hines, 97 NY2d 56 , 61-62 [2001]). Defendant’s remaining contention is without merit.

Today’s decision correctly applies People v Hines ( 97 NY2d 56 , 61-62 [2001]). I have expressed my unhappiness with Hines before (People v Payne, 3 NY3d 266 , 273 [2004, R.S. Smith, J., concurring]), but this case, in which the Appellate Division did not mention preservation, defendant does not argue the issue, and the Appellate Division’s decision on the merits seems clearly correct, is not the right one for further examination of the Hines rule.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur; Judge Smith concurs in a separate concurring opinion.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed in a memorandum.

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