People v. Mathews

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of rape in the first degree, two counts of sexual abuse in the first degree and endangering the welfare of a child. We reject defendant’s contention that County Court improperly limited cross-examination of a prosecution witness regarding sexual activity between the complainant, age 10, and individuals other than defendant. That evidence is irrelevant to the issue whether de*955fendant had sexual intercourse with the complainant and is not otherwise admissible under CPL 60.42 (see, People v Gag-non, 150 AD2d 918, 919, affd 75 NY2d 736; People v Boyd, 122 AD2d 273, 275).

Contrary to defendant’s contention, the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). Defendant further contends that the prosecutor improperly commented during his opening statement on defendant’s pre-arrest silence. That issue is unpreserved for our review (see, CPL 470.05 [2]; People v Johnson, 110 AD2d 1057, lv denied 66 NY2d 615), and we decline to exercise our power to address it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). We further conclude that the court did not abuse its discretion in sentencing defendant as a persistent felony offender (see, Penal Law § 70.10) and that the sentence imposed is neither unduly harsh nor severe (see, CPL 470.15 [6] [b]). (Appeal from Judgment of Wayne County Court, Sirkin, J. — Rape, 1st Degree.) Present — Green, J. P., Pine, Law-ton, Balio and Boehm, JJ.