The First Department determined a text message sent by the 15-year-old victim of an alleged sexual assault should not have been admitted under the “prompt outcry” hearsay exception. Defendant’s conviction was reversed:
A complaint is timely for purposes of the prompt outcry exception if made “at the first suitable opportunity,” which is a “relative concept dependent on the facts” … .
While a significant delay in reporting does not necessarily preclude outcry evidence, especially where the victim is a child … , when the complainant is a teenager (or older), “the concept of promptness necessarily suggests an immediacy not ordinarily present when months go by” … . With respect to teenagers and adults rather than young children, a reporting delay of several months may be justified if there were “legally sufficient circumstances” that would excuse the victim’s delay, such as the victim being “under the control or threats of the defendant…or being among strangers and without others in whom [the victim] could confide” … .
Here … there is an absence of circumstances to bring this lengthy delay within the prompt outcry rule. While the evidence indicated that the complainant experienced confusion, shock, embarrassment, and fear of not being believed, as well as concern about her mother and grandmother’s reactions, there is no evidence that she was threatened by defendant or was under his control. Although the outcry occurred after defendant was incarcerated on a parole violation, the complainant made the disclosure at least a month after that circumstance occurred, and she did not testify that she delayed her disclosure based on a fear of retribution. People v Ortiz, 2016 NY Slip Op 00593, 1st Dept 1-28-16
CRIMINAL LAW (STATEMENT SHOULD NOT HAVE BEEN ADMITTED AS A PROMPT OUTCRY)/EVIDENCE (STATEMENT SHOULD NOT HAVE BEEN ADMITTED AS A PROMPT OUTCRY)/HEARSAY (STATEMENT SHOULD NOT HAVE BEEN ADMITTED AS A PROMPT OUTCRY)/PROMPT OUTCRY (STATEMENT SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE)