People v. Spencer

Judgment, Supreme Court, Bronx County (Stephen L. Barrett, J.), rendered November 18, 1987, convicting defendant, after a jury trial, of rape in the first degree and sodomy in the first degree and sentencing him, as a second felony offender, to two concurrent indeterminate prison terms of from 10 to 20 years, unanimously affirmed.

Defendant’s failure to specifically object to the court’s "prompt outcry” charge renders his instant appellate claims respecting the charge unpreserved. In any event, to the extent that defendant challenges the rationale underlying the "prompt outcry” charge, we note that the Court of Appeals has recently addressed such a charge without indicating any *643retreat from its general viability (see, People v Rice, 75 NY2d 929). Finally, any error with respect to the charge in this case would be harmless in view of the overwhelming evidence of guilt. It suffices to say, in this regard, that defendant was apprehended while on the subway platform as he struggled with the complainant, who was naked from the waist down. Concur—Rosenberger, J. P., Ellerin, Wallach, Smith and Rubin, JJ.