People v. Walker , 548 N.Y.S.2d 661 ( 1989 )

Judgments of the Supreme Court, Bronx County (Stephen Barrett, J.), rendered March 21, 1989, convicting defendant, following a jury trial, of two counts of sexual abuse in the first degree and convicting him, upon his plea of guilty, of two other counts of sexual abuse in the first degree and sentencing him to two concurrent terms of incarceration of from 2 to 6 years and 2 Vs to 7 years, to run concurrently with the other sentences, unanimously affirmed.

Defendant’s guilt was proved beyond a reasonable doubt by overwhelming evidence.

The trial court did not deprive defendant of potentially exculpatory evidence when it precluded him from calling an optometrist as a witness, who would have testified to the popularity of a particular eyeglass style in 1983 and 1984, which type eyeglasses defendant conceded to wearing in 1986. These eyeglasses were only one item in a very detailed description of the perpetrator by the victim. It was not sufficiently relevant to this description, and to the crime, that other men might have worn similar eyeglasses so as to require that defendant have had access to such testimony. Defendant’s argument that counsel was made an unsworn witness by elicitation of the statement that the latter had participated in the lineup is also meritless. Defendant did not challenge the fairness of the lineup at trial, and a marginal reference to counsel’s presence at the lineup is not relevant to any fact in issue.

The court’s supplemental instructions, offered in response to a jury note requesting suggestions as to how the jury might conduct deliberations, although better unsaid, were neutral on their face and did not intrude unduly into the deliberative process. Further, the exclusion of a witness during summations did not deprive defendant of the right to a public trial. There is, in addition, no persuasive indication that the court abused its discretion in imposing sentence. Concur—Sullivan, J. P., Ross, Milonas, Smith and Rubin, JJ.