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Evidence Insufficient to Support Attempted Rape Conviction, Ordering Victim to Take Off Her Clothes, Without More, Was Not Enough

The Second Department determined the evidence did not support the attempted rape conviction. Although it could be inferred defendant intended to commit a sexual offense (he twice told the victim to take off her clothes), he never touched the victim, made a verbal demand for sex, or removed any of his clothes:

… [W]e find that it was legally insufficient to establish the defendant’s guilt of attempted rape in the first degree beyond a reasonable doubt. The complainant testified that she was sleeping in her bedroom when she awakened to find the defendant, who had entered her house through a window, standing in her bedroom. He initially demanded money from her. After she told him twice that she had none, he yelled at her “take your clothes off.” He then walked around the left side of the bed towards her, again yelled “take your clothes off,” and pulled back her bed covers. After he pulled down the covers, she began screaming and he turned and ran out. There was no evidence that the defendant touched the complainant or that he made a verbal demand to have sexual intercourse with her. Additionally, there was no evidence that the defendant undressed or that any of the complainant’s clothes were removed.

Although it could be reasonably inferred from the evidence adduced at trial that the defendant intended to engage in some type of criminal sexual conduct, it cannot be inferred that he attempted to engage in sexual intercourse by forcible compulsion pursuant to Penal Law § 130.35(1) … . People v Mais, 2015 NY Slip Op 08195, 2nd Dept 11-12-15

 

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Rape-Complainant’s Mental Health Records Raised a Brady, Not a Confrontation, Issue—Trial Judge Properly Ruled that Most of the Records Would Not Be Turned Over to the Defense Because There was No Reasonable Possibility Disclosure Would Have Led to Defendant’s Acquittal

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a forceful dissent by Judge Rivera, determined the trial court had properly refused to turn over to the defense most of the complainant’s mental health records.  The 18-year-old complainant called 911 to report she had just been raped by the 40-year-old defendant.  The defendant claimed that they had consensual sex but that he struggled with the complainant after she started to run away with his pants and money. The case came down to the credibility of the defendant and the complainant.  The complainant suffered from “Bipolar, Tourettes, post-traumatic-stress disorder, [and] epilepsy.”  She had visualized the presence of dead people, had cut herself, had been violent, had attempted suicide and had made an allegation of sexual assault against her father which one record referred to as “unfounded.” She also suffered from attention deficit disorder and hypersexuality. The trial judge disclosed only a few of complainant’s mental health records.  The majority determined the mental health records raised a Brady issue, not a confrontation issue (as was argued by the defendant and the dissent):

While defendant presents the issue as one of interference with his rights of confrontation and cross-examination, we view this as essentially a Brady case (Brady v Maryland, 373 US 83 [1963]; see Pennsylvania v Ritchie, 480 US 39, 56 [1987] [evaluating under Brady the question of whether confidential investigative files concerning child abuse must be disclosed to a criminal defendant]). Under Brady, a defendant is entitled to the disclosure of evidence favorable to his case “where the evidence is material” (373 US at 87). In New York, the test of materiality where, as here, the defendant has made a specific request for the evidence in question is whether there is a “reasonable possibility” that the verdict would have been different if the evidence had been disclosed … .

This case differs from the typical Brady case in that it involves confidential mental health records, and the decision to deny disclosure was made not by a prosecutor, but by a judge after an in camera review of the records sought. In such a case, the trial court has a measure of discretion in deciding whether records otherwise entitled to confidentiality should be disclosed … .

In sum, the issue here is whether the trial court abused its discretion in finding defendant’s interest in obtaining the records to be outweighed by the complainant’s interest in confidentiality; and defendant’s interest could be outweighed only if there was no reasonable possibility that the withheld materials would lead to his acquittal. Having examined those materials, we conclude that the court did not abuse its discretion. People v McCray, 2014 NY Slip Op 02970, CtApp 5-1-14

 

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Past Domestic Violence Admissible to Show Intent in Rape Case—Victim’s Statements in Hospital Report Admissible under Business Records Exception/Confrontation Clause Not Implicated Because Statements Were Not Testimonial—Victim’s Statements Shortly After the Rape Admissible as Excited Utterances

In a case where the defendant was charged with raping his ex-girlfriend, the Third Department determined past incidents of domestic violence were properly allowed in evidence to demonstrate intent, statements made by the victim (who died before trial from an unrelated cause) included in a hospital report were admissible under the business records exception to the hearsay rule, and statements made by the victim shortly after the rape were admissible as excited utterances.  With respect to the hospital records, the court wrote:

County Court properly allowed admission of statements that the victim made during her medical examination. “Hospital records fall within the business records exception to the hearsay rule as long as the information relates to diagnosis, prognosis or treatment” … . Details of the abuse, even including the perpetrator’s identity, may be relevant to diagnosis and treatment when the assault occurs within a domestic violence relationship because the medical provider must consider the victim’s safety when creating a discharge plan and gauging the patient’s psychological needs … . The physician who examined the victim testified that all of the information in the medical records was relevant to and gathered for purposes of diagnosis or treatment, and the primary purpose of the examination was to care for the patient’s health and safety, although a secondary purpose of the forensic examination was to gather evidence that could be used in the future for purposes of prosecution. Considering this information, although the victim was unavailable to testify because she died before trial (from causes unrelated to defendant’s crimes), defendant’s Confrontation Clause rights were not violated because the statements were not testimonial… . People v Pham, 2014 NY Slip Op 04276, 3rd Dept 6-12-14

 

Rape and Incest Counts Rendered Indictment Multiplicitous/Trial Testimony Rendered Counts Duplicitous

The Second Department determined the trial testimony rendered some of the rape and incest counts duplicitous.  The defendant’s daughter testified she was raped once a week for three weeks every month.  The court determined that where the jury found the defendant guilty of all three crimes charged within a particular month, the counts were not duplicitous because the jury would have had to vote unanimously on all three crimes.  However, where the defendant was convicted of only one or two of the crimes charged for a particular month, it was impossible to know whether the jury voted unanimously on the same alleged crimes.  In addition the court noted that some of the counts charging rape and incest were based on the same conduct, rendering the indictment multiplicitous as well:

“Each count of an indictment may charge one offense only” (CPL 200.30[1]). A count that, in violation of the statute, charges more than one offense, “is void for duplicity” … . “The proscription against duplicitous counts . . . seeks [inter alia] to prevent the possibility that individual jurors might vote to convict a defendant of that count on the basis of different offenses,’ in effect, permitting a conviction even though a unanimous verdict was not reached”… . “Where a crime is completed by a discrete act, and where a count in the indictment is based on the repeated occurrence of that act over a course of time, the count includes more than a single offense and is duplicitous” … . “Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented to the grand jury or at trial makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … .

The younger daughter testified that the defendant had sexual intercourse with her once, on Tuesday or Wednesday, every week for the first three weeks of each month during the period at issue, while skipping the fourth week, because she was menstruating. The verdict sheet presented to the jury contained three counts for each month at issue. The first count for each month described the alleged crime as occurring on or about the first of the subject month to on or about the last day of the month. The second count for each month provided the same description as the first count for each month, but also stated that the alleged crime was “separate and distinct from the act mentioned and described” in the first count for that month. The third count provided the same description as the first count for each month, but also stated that the alleged crime was “separate and distinct from the acts mentioned and described” in the first and second counts for that month.

Contrary to the defendant’s contention, where the jury convicted the defendant of all three of the counts for the same month, it is clear, based on the younger daughter’s testimony, that they were unanimous in convicting him of each of the three different crimes. However, as the People correctly concede, where the defendant was convicted of only one or two of the counts charging rape or incest in a particular month, it is impossible to determine whether the jury unanimously found the defendant guilty of the same crime, because neither the wording on the verdict sheet, nor the jury charge, linked “the testimony of vaginal intercourse sequentially or otherwise to the different counts of the indictment”… . People v Jean, 2014 NY Slip Op 03534, 2nd Dept 5-14-14

 

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Expert Evidence to Explain an Adolescent’s Reactions to Sexual Abuse Properly Admitted

The Second Department determined expert testimony about “adolescent sexual abuse” was properly admitted in a sex-crime trial to explain delay in reporting, imprecise memory, accommodation, and a “flat affect” during testimony:

“Expert testimony is properly admitted if it helps to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror'” … . “[E]xpert testimony regarding rape trauma syndrome, abused child syndrome or similar conditions may be admitted to explain behavior of a victim that might appear unusual or that jurors may not be expected to understand” … . The expert’s testimony was properly admitted to explain the issue of delayed disclosure and to counter the defense claim that the complainant fabricated the sexual abuse allegations when her parents objected to her having a boyfriend … . The testimony was also properly admitted to explain why the complainant did not recall with specificity when certain of the alleged incidents occurred, and why victims of adolescent sexual abuse may manifest a “flat affect” when testifying. The testimony was “general in nature and does not attempt to impermissibly prove that the charged crimes occurred” … . To the extent the expert testified as to an abuser’s behavior patterns, such testimony was admissible to help explain “why victims may accommodate abusers and why they wait before disclosing the abuse” … . People v Gopaul, 2013 NY Slip Op 08659, 2nd Dept 12-26-13

 

All But Rape First Charges Were Time-Barred—Different Statute of Limitations for Rape First

The Fourth Department determined all charges but the Rape in the First Degree charge had to be dismissed as time-barred.  A change in the statute of limitations for Rape First applied to all such charges not time-barred at the time of the statutory change:

In 2002, when the crimes were committed, the statute of limitations for the charged offenses was five years (see CPL 30.10 former [2] [b]).  Because he was not charged until more than seven years later, defendant raised a facially viable statute of limitations defense, and the burden thus shifted to the People to prove beyond a reasonable doubt that the statute of limitations was tolled or otherwise inapplicable  We conclude that the People satisfied their burden with respect to the charge of rape in the first degree.  As the People correctly contend, the legislature amended CPL 30.10 in 2006 so as to abolish the statute of limitations for four sex offenses, including rape in the first degree and criminal sexual act in the first degree (see L 2006, ch 3, § 1).  The amendment applied not only to crimes committed after its effective date of June 23, 2006, but also to offenses that were not yet time-barred (see L 2006, ch 3, § 5 [a]).  People v Burroughs, 690, 4th Dept 7-5-13

 

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