| People v McCray |
| 2013 NY Slip Op 00236 [102 AD3d 1000] |
| January 17, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vTerence McCray, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Albany County (Breslin,J.), rendered September 1, 2010, upon a verdict convicting defendant of the crime of rapein the first degree.
This case, which began with a consensual relationship and ended in defendant'sindictment on a single count of rape in the first degree (see Penal Law §130.35 [1]), presents a classic he-said she-said credibility determination. After a jurytrial, defendant was convicted and sentenced as a second felony offender to a prison termof 22 years and five years of postrelease supervision. Defendant appeals and we nowaffirm.
We turn first to defendant's argument that the verdict was against the weight of thecredible evidence, necessitating a full review of the testimony adduced at trial. Manydetails are undisputed. Defendant, then 40 years old, first met the victim—an18-year-old woman with an extensive history of psychiatric problems—at a busstop in the City of Albany in April 2009. They talked extensively about various topics,including sex, while walking together until they eventually visited a recreational vehiclethat belonged to a friend of defendant. The victim testified that, while inside the vehicle,defendant gave the victim a back massage, but nothing else happened of an intimatenature. Defendant's version of these events differed only in that he testified that,following the massage, the victim engaged in oral sex with him. Upon parting that night,the victim gave defendant her telephone number and they spoke on the telephone a fewtimes in the weeks ahead. On May 26, 2009, defendant called the victim and invited herout for [*2]the evening. The victim's mother drove her todefendant's residence, where the victim met members of defendant's family, and she thendropped the pair off on Lark Street. They walked around for a while and stopped at thehome of defendant's friend, Marvin Calhoun, where they visited with Calhoun and hisfamily. The victim admits that she exchanged sexual innuendos with defendant duringthis visit. After a few hours, the couple left, ending up at the apartment of another one ofdefendant's friends, Kevin Johnson, where they engaged in consensual kissing andfondling.
It is at this point that the testimony of defendant and the victim sharply diverges. Thevictim testified that after about 15 minutes, defendant wanted to have intercourse but sherefused, telling him it was too soon in their relationship. When defendant continued toinsist, she became angry with him and left the apartment. Defendant caught up with heron a street outside the apartment and apologized to her. She stated that they continued toargue while they walked, but that she tired of walking so they sat down. The victimstated that, while seated, they witnessed police officers draw their weapons on a youngfemale with a baseball bat. She explained that this incident made both her and defendantlaugh, and she no longer felt angry with him.
Defendant testified that the victim had unsuccessfully asked Calhoun if they coulduse a bedroom to have sex while visiting Calhoun's family and, once at Johnson'sapartment, she initiated sex and it was he who refused to have intercourse there becausehe thought it was not appropriate to have sex on the couch with his friend in the nextroom. He testified that they left the apartment together in search of another place to havesex, and that the victim was willing even to have sex outside in the bushes. Defendantfurther stated that the victim was not angry with him when they left Johnson's apartmentand that they never witnessed the police encounter with the female with the baseball bat.
By both accounts, the couple eventually ended up at an abandoned house located at595 Clinton Avenue in Albany, where the victim followed defendant through thebackyard into the house. At this point, the accounts of the victim and defendant againdiverge. The victim testified that defendant backed her up against a wall and started toforcibly kiss and grind against her. She testified that she pushed him away and told himto stop, but that he continued, telling her, "You are going to give it to me or I'm going totake it." The victim stated that they struggled; she punched defendant in the face, near hisjaw or chin, and defendant hit her in the face several times and choked her. While he waschoking her from behind, the victim testified, she was able to bite his forearm. After anextended struggle, during which the victim tried to make noise to draw attention andbegged for her life, she gave up and submitted to sexual intercourse with defendant. Thevictim stated that, when it was over, defendant did not prevent her from leaving, but toldher, "Don't go out there looking like that." The victim stated that she wiped the tears andblood off of her face onto her shirt, then went out the same way they had entered. Shefurther testified that she got caught on a fence while trying to leave, and ripped her shirt.She came upon a pay telephone and called 911. Police officers arrived and she wasbrought to the hospital for examination. The victim's torn shirt and photographs of herbruised face were admitted in evidence at trial.
By contrast, defendant testified that the couple had consensual intercourse onceinside the abandoned building. He explained that after they were through and he askedthe victim if she wanted to go home, she suddenly demanded money from him and, whenhe refused, grabbed his pants and began to leave. Defendant stated that he then tackledthe victim to prevent her from [*3]leaving and her facestruck the floor as they fell. They then struggled as he attempted to pry hismoney—which the victim had by then extracted from the pocket of hispants—from her hand and, during the struggle, she bit his arm. According todefendant, he eventually managed to squeeze the victim's hand open and retrieve hiscash, at which point the victim got up and left the building.
Defendant then went to the home of his friend, James Close, where, according toClose, he pounded on the door, yelling for admittance. Close testified that defendantlooked like he was being chased by someone and implied that he wanted to come insidebecause there was a female outside who was exposing herself to defendant. Defendanttestified that he went to Close's house because he wanted to tell him about his encounterwith the victim but, suddenly realizing that the abandoned house he had been trespassingin might belong to Close, changed his mind and left. He explained that he might havereferred to the victim as "the girl [who] lifted her shirt up on Central Avenue that time"because he had told Close about his first meeting with the victim and that she hadexposed herself on the street that night to some passers-by.
Based on this evidence, it would not have been unreasonable for the jury to believedefendant's testimony that the sexual encounter was consensual.[FN1]Thus, to determine if the verdict was against the weight of the evidence, we " 'must, likethe trier of fact below, weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony' " (People v Terry, 85 AD3d1485, 1486 [2011], lv denied 17 NY3d 862 [2011], quoting People v Romero, 7 NY3d633, 643 [2006]), while giving due deference to the credibility determinations of thejury (see People v Wright,81 AD3d 1161, 1163 [2011], lv denied 17 NY3d 803 [2011]). Defendant,both in counsel's brief and in his pro se submission, relies on inconsistencies in thevictim's testimony, her mental health history and his interpretation of the physicalevidence and testimony adduced at trial to argue that the verdict is against the weight ofthe credible evidence. Examining all his arguments and the proof adduced at trial, wefind no legal basis for substituting a different conclusion from that reached by the jury.
Defendant focuses on the fact that a hospital record states that the victim reported tomedical personnel that the attack lasted three minutes, while she testified that theystruggled for 30 to 45 minutes. A review of that record, however, suggests that the timereported may refer to the duration of the rape, as opposed to the entire struggle. Further,defendant emphasizes the fact that, according to a hospital record, the victim firstreported that there was some consensual kissing at the abandoned house, but thereaftertestified that the kissing was also against her will. We do not find this inconsistency to beevidence that the victim's testimony is fundamentally unreliable; she was cross-examinedon this at trial, thus putting the credibility determination [*4]squarely in front of the jury. Faced with inconsistencies,"the jury 'was entitled to credit some of her testimony while discounting other aspects' "(People v Hoppe, 96 AD3d1157, 1159 [2012], lv denied 19 NY3d 1026 [2012], quoting People v Kuykendall, 43AD3d 493, 495 [2007], lv denied 9 NY3d 1007 [2007]; see People v Alteri, 49 AD3d918, 920 [2008]). Likewise, defendant's assertion on appeal—that the victim'stestimony that they witnessed police officers draw their weapons on a female carrying abaseball bat was incredible—is a decision appropriately left to the trier of fact.
Defendant also argues that the victim's credibility is undermined by her mentalillnesses. Evidence was presented at trial that established that the victim had a longhistory of mental illness; she had been diagnosed with epilepsy, posttraumatic stressdisorder, Tourette's disorder and bipolar disorder and, as a result of these conditions, shehad been hospitalized more than 10 times in her 18 years. It is well settled that anindividual suffering from mental illness may be competent to provide evidentiarytestimony at trial (see People v Gelikkaya, 84 NY2d 456, 460 [1994]; Peoplev Rensing, 14 NY2d 210, 213-214 [1964]). No proof was presented that the victimwas unable to appreciate the nature of her oath (see People v Gelikkaya, 84NY2d at 460), and the jury was aware of the victim's diagnoses and was free todetermine that she was, nevertheless, more credible than defendant (see People v Plaisted, 2 AD3d906, 909 [2003], lv denied 2 NY3d 744 [2004]).
Nor do we find that the victim's testimony was necessarily contradicted by thephysical evidence. The victim's injuries, which consisted of a bruise on her face, a cutinside her cheek and a scratch near her lip, coupled with the teeth marks on defendant'sforearm, were not so insubstantial as to render the victim's description of the struggleimplausible. The victim's testimony was not incredible as a matter of law; rather, theconflicting testimony "presented 'a classic credibility issue' for the jury to resolve" (People v Mitchell, 57 AD3d1308, 1309 [2008], quoting People v Allen, 13 AD3d 892, 894 [2004], lvdenied 4 NY3d 883 [2005]; see People v Blackman, 90 AD3d 1304, 1308 [2011],lv denied 19 NY3d 971 [2012]).[FN2]
We turn next to defendant's contention that County Court erred in refusing to turnover all of the victim's mental health records. In general, mental health records areconfidential and will not be discoverable where sought as "a fishing expedition searchingfor some means of attacking the victim's credibility" (People v Brown, 24 AD3d 884, 887 [2005], lvdenied 6 NY3d 832 [2006]; see People v Gissendanner, 48 NY2d 543, 550[1979]; People v Bush, 14AD3d 804, 805 [2005], lv denied 4 NY3d 852 [2005]). Access will beprovided, however, where a defendant can demonstrate a good faith basis for believingthat the records contain "data relevant [*5]and material tothe determination of guilt or innocence," a decision which will rest "largely on theexercise of a sound discretion by the trial court" (People v Gissendanner, 48NY2d at 548; see People vPlaza, 60 AD3d 1153, 1154-1155 [2009], lv denied 12 NY3d 919[2009]). Here, defendant requested all of the victim's mental health records, based on thedisclosure by the People that the victim has a history of mental illness, had been thevictim of sexual abuse on at least three prior occasions and had attempted suicide in themonths leading up to the trial.
Under these circumstances, County Court appropriately conducted an in camerareview of the victim's records and partially granted defendant's request by turning overthose records that the court found were pertinent to the case. In this manner, the courtproperly balanced defendant's 6th Amendment right to cross-examine an adverse witnessand his right to any exculpatory evidence against the countervailing public interest inkeeping certain matters confidential (see People v Gissendanner, 48 NY2d at549-551; People v Boyea, 222 AD2d 937, 938-939 [1995], lv denied 88NY2d 934 [1996]; see alsoPeople v Fuentes, 12 NY3d 259, 263-265 [2009]). We have reviewed thevictim's voluminous mental health records and conclude that the court provided anappropriate sample of documents that covers all of the victim's relevant and materialmental health issues.
The dissent, in performing its review of the victim's mental health records, hasunearthed some documents that were not disclosed to defendant and are relevant to thevictim's competence to testify, in particular, references to short-term memory loss, suchas her inability to recall events after she has had a temper tantrum, and a suggestion thatshe forgets good experiences with a person if they are succeeded by a negativeexperience. We find, however, that it was not an abuse of discretion for County Court tofail to disclose these documents. Indeed, given the limited impact these additionalrelevant records have when compared to the amount of material that was disclosed to thedefense regarding the victim's hallucinations, various diagnosed conditions, medications,preoccupation with sex, poor judgment, dangerous behaviors, self-abuse, violentoutbursts, etc., we cannot find that County Court so failed in its diligent efforts to cullthrough thousands of pages of mental health records to balance the victim's rights againstdefendant's rights such as would constitute an abuse of discretion.[FN3]
Other documents that the dissent asserts should have been disclosed were redundantin light of those records that were disclosed. For example, additional documents relatingto the victim's poor perception and insight were properly withheld because the sampledocuments disclosed contain multiple references to her poor impulse control and lack ofjudgment, especially in sexual interactions and Internet exchanges. Likewise, the victim'sexperiences with seizures and flashbacks were disclosed in documents turned over to thedefense. An incident where the victim was found wandering on a highway and not ableto remember how she got there was also noted in one of the documents that wasdisclosed.
Additionally, it was not necessary for County Court to disclose those few referencesin the victim's mental health records that suggest that she may have falsely accused herfather of [*6]sexually abusing her when she was 13.Assuming that the records contain enough information to suggest a falseallegation,[FN4]this evidence would not be admissible under New York's Rape Shield Law because it isfar too different and attenuated from the circumstances of the present allegation of rapeto " 'suggest a pattern casting substantial doubt on the validity of the charges made by thevictim' or 'indicate a significant probative relation to such charges' " (People vBlackman, 90 AD3d at 1310 [citations omitted]; see People v Mann, 41 AD3d 977, 978-979 n [2007], lvdenied 9 NY3d 924 [2007]). We detect no pattern of behavior by comparing thisremote, alleged false claim of sexual abuse by the victim against her alcoholic, physicallyabusive father, with her assertion that she was date-raped by defendant (see People vMandel, 48 NY2d 952, 953 [1979] [prior false allegations of rape inadmissiblewhere "no showing was made that the particulars of the complaints, the circumstances ormanner of the alleged assaults or the currency of the complaints were such as to suggest apattern casting substantial doubt on the validity of the charges made by the victim in thisinstance"], appeal dismissed and cert denied 446 US 949 [1980]; People v McKnight, 55 AD3d1315, 1316 [2008] [insufficient proof that alleged prior false accusations of sexualabuse were "suggestive of a pattern that casts doubt on the validity of, or bore asignificant probative relation to, the instant charges" (internal quotation marks andcitations omitted)], lv denied 11 NY3d 927 [2009]; compare People v Hunter, 11NY3d 1, 6 [2008] [noting the similarities between recent, allegedly false accusationsand those alleged against the defendant]). When determining whether a trial court abusedits discretion, we must necessarily consider whether or not the document, if turned over,could have had any impact on the trial. Here, there can be no abuse of discretion as theinformation contained in the documents would not have been admissible, and we cannotenvision how such information might have led to other material and admissible evidence.
Defendant also argues that County Court committed reversible error by precludinghim from examining the victim about her hypersexuality. When defense counsel askedthe victim on cross-examination if, at some point in time, she had been diagnosed ashypersexual, the court sustained the People's objection as to form and directed counsel torephrase the question. Counsel was unable to do so in a way to avoid objection andmoved on. "Evidence of a victim's sexual conduct shall not be admissible in aprosecution for [a sex] offense" unless it meets one of the enumerated statutoryexceptions (CPL 60.42). Here, the victim's mental health records indicate that sheexhibits hypersexual behavior in that she is inappropriately focused on sex in [*7]conversation with others, and that such behavior is asymptom of her bipolar disorder. Defendant did not introduce medical evidence or experttestimony to establish that hypersexuality is a mental illness that would impact thevictim's credibility or control her behavior; indeed, all references to the victim's"hypersexuality" in her medical history are to her wholly voluntary inappropriate,promiscuous behavior—conduct intentionally designed to shock and drawattention—which is precisely the kind of evidence the Rape Shield Law prohibits(see CPL 60.42; Peoplev Simonetta, 94 AD3d 1242, 1246 [2012], lv denied 19 NY3d 1029[2012]). Under these circumstances, we discern no abuse of discretion in the court'slimitation on the scope of cross-examination of the victim (see People v Halter, 19 NY3d1046, 1049 [2012]; People v Simonetta, 94 AD3d at 1246; People v Scott, 67 AD3d1052, 1054 [2009], affd 16 NY3d 589 [2011]; People v Passenger,175 AD2d 944, 946 [1991]).
In any event, defendant was permitted to introduce evidence of the victim'shypersexuality on the record through the testimony of the victim's mother, defendant andCalhoun.[FN5]Accordingly, the jury had this information when assessing the evidence againstdefendant. We also hold that County Court's refusal to permit defendant to cross-examinethe victim's mother regarding various events at which the victim exhibited undisciplinedbehavior, while permitting questions regarding the victim hearing voices, wanderingaround outside in her pajamas, sensing dead people and visualizing her deceasedgrandfather, demonstrated a sound exercise of discretion in controlling the scope ofcross-examination (see People vCarter, 50 AD3d 1318, 1321 [2008], lv denied 10 NY3d 957 [2008]).
We turn next to defendant's claim that he was deprived of the effective assistance ofcounsel and, in doing so, address several substantive arguments that defendant asserts onappeal that were not preserved by an appropriate objection at trial. To establish thisclaim, defendant must show that counsel failed to provide meaningful representation andthat there is an " 'absence of strategic or other legitimate explanations' for counsel'sallegedly deficient conduct" (People v Caban, 5 NY3d 143, 152 [2005], quotingPeople v Rivera, 71 NY2d 705, 709 [1988]).
Defendant asserts that counsel should have objected to the introduction of testimonyfrom police officers that the victim reported being sexually assaulted on the basis thatthese hearsay statements improperly bolstered the victim's testimony (see People vBuie, 86 NY2d 501, 510-511 [1995]; People v Caba, 66 AD3d 1121, 1123 [2009]).Significantly, defendant does not directly dispute that the admitted statements fall withinthe prompt outcry exception to the hearsay rule (see People v Rosario, 17 NY3d 501, 511 [2011]; People v Perkins, 27 AD3d890, 892-893 [2006], lvs denied 6 NY3d 897 [2006], 7 NY3d 761 [2006])but, instead, argues the prejudicial impact of this evidence in light of the number ofprompt outcry statements admitted and County Court's failure to provide a limitinginstruction as to its relevance. Inasmuch as the outcry testimony was accurately limited tothe fact that a complaint was made and the court gave an appropriate prompt outcryinstruction in its charge to the jury (see CJI2d[NY] Prompt Outcry; People v Bernardez, 85 AD3d936, 938 [2011], lv denied 17 NY3d 857 [2011]), we discern no significanterror in counsel's decision not to object to this testimony or ask for a limiting instruction.[*8]
Likewise, defense counsel did not err in failing toobject to the introduction of evidence of the victim's statements to medical personnel.These statements squarely fall within the medical records exception to the hearsay rulebecause they were germane to diagnosis and treatment (see People v Wright, 81 AD3d1161, 1164 [2011], lv denied 17 NY3d 803 [2011]; People vThomas, 282 AD2d 827, 828 [2001], lv denied 96 NY2d 925 [2001]; seealso CPLR 4518; CPL 60.10). Accordingly, the testimony and records pertaining tothe victim's emergency room visit on the night of the rape were properly admitted (see People v Ortega, 15 NY3d610, 617 [2010]; People v Wright, 81 AD3d at 1164).
We also discern no error in defense counsel's failure to object to the introduction ofevidence of defendant's criminal history inasmuch as a Sandoval hearing washeld prior to trial where County Court precluded inquiry into 22 of the 27 prior offensesproffered by the People. Additionally, the People did not exceed the scope of the court'slimited Sandoval ruling during defendant's cross-examination, and the courtinformed the jury that it could only consider the crimes with regard to his credibility (see People v Nash, 87 AD3d757, 759 [2011], lv denied 17 NY3d 954 [2011]). Likewise, althoughdefense counsel did not object to the People's use of defendant's statement for the firsttime during his cross-examination, such objection would have been fruitless as thestatement was admissible to impeach him (see People v Martin, 8 AD3d 883, 886 [2004], lvdenied 3 NY3d 677 [2004]).
Defendant makes numerous other, specific objections to defense counsel's choices inrepresenting him. We have considered them carefully and find each to be the product of alegitimate trial strategy, or to concern matters outside the record, and, therefore, are moreproperly reviewed on a motion pursuant to CPL article 440 (see People v McCray, 96AD3d 1160, 1161 [2012], lv denied 19 NY3d 1104 [2012]). Counselzealously advocated for defendant, made appropriate pretrial motions, pursued areasonable defense theory, thoroughly cross-examined witnesses and made appropriateevidentiary objections; thus, viewing the record as a whole, defendant receivedmeaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998];People v Evans, 81 AD3d1040, 1041 [2011], lv denied 16 NY3d 894 [2011]).
Many of defendant's remaining contentions on appeal do not warrant extendeddiscussion. His claim that bail was improperly denied is moot in light of his convictionand subsequent incarceration (see Matter of Varela v Stein, 37 AD3d 1001, 1001 [2007]).His contentions that County Court improperly denied his second request for new counsel,and that deficiencies existed in the grand jury proceedings, the felony complaint, theindictment and the presentence report lack a factual basis in the record. Defendant'sallegations of prosecutorial misconduct do not demonstrate a " 'flagrant and pervasivepattern' of misconduct" warranting reversal (People v Hunt, 39 AD3d 961, 964 [2007], lvdenied 9 NY3d 845 [2007], quoting People v McCombs, 18 AD3d 888, 890 [2005]).
Finally, we turn to defendant's request that we modify his sentence on the basis that itis unduly harsh and excessive. Given the violent nature of this crime against aparticularly vulnerable victim, defendant's extensive criminal history—includingthree prior felonies and a prior sexual offense—and the fact that defendant's ownconduct prevented any argument for leniency to be made as he refused to permit counselto speak on his behalf at sentencing or to address County Court himself, we cannot find"an abuse of discretion or extraordinary circumstances warranting reduction" (Peoplev Walker, 266 AD2d 727, 728 [1999], lv denied 96 NY2d 909 [2001];see People v Jones, 39 NY2d 694, 697 [1976]). Nor are we persuaded that thedisparity between the ultimate sentence imposed and a very favorable plea offered priorto trial [*9]necessitates the conclusion that defendant waspenalized for exercising his right to a trial where, as here, the attractive plea offer iseasily justified by the fact that the People's proof largely rested on the credibility of thevictim, who was a troubled, emotional young woman (see People v Blond, 96 AD3d1149, 1153-1154 [2012], lv denied 19 NY3d 1101 [2012]; People vMaldonado, 205 AD2d 933, 933 [1994] lv denied 84 NY2d 908 [1994]; compare People v Williams, 40AD3d 1364, 1367 [2007], lv denied 9 NY3d 927 [2007]).
We have considered defendant's remaining contentions and find them to be withoutmerit.
Stein and Garry, JJ., concur.
McCarthy, J. (dissenting). Defendant is entitled to a reversal of his judgment ofconviction because his 6th Amendment rights to confront and cross-examine adversewitnesses were violated by County Court's failure to turn over to defendant certaincritical mental health records pertaining to the victim. Defendant was entitled to theundisclosed records pursuant to controlling Court of Appeals precedent. The undisclosedrecords all raise issues that would affect the victim's credibility or her ability to recallevents, and some of the undisclosed records would be extremely damaging to thePeople's case. We, therefore, respectfully dissent.
County Court followed the proper procedure by conducting an in camera review ofthe victim's mental health records to balance defendant's 6th Amendment rights toconfront and cross-examine adverse witnesses with the public interest in keeping certainmatters confidential (see People v Gissendanner, 48 NY2d 543, 549-551 [1979];People v Boyea, 222 AD2d 937, 938-939 [1995], lv denied 88 NY2d934 [1996]). Confidential records should only be turned over to the defense if theycontain information that is "relevant and material to the determination of guilt orinnocence" (People v Gissendanner, 48 NY2d at 548), such as "evidence that thevictim has a history of hallucinations, sexual fantasies or false reports of sexual attacks"(People v Fish, 235 AD2d 578, 580 [1997], lv denied 89 NY2d 1092[1997]; see People vBrown, 24 AD3d 884, 887 [2005], lv denied 6 NY3d 832 [2006]).
As the majority notes, the 28 pages of mental health records provided to the defenseby County Court—out of the thousands of pages reviewed incamera—contain statements about the victim's history of psychiatrichospitalizations, hallucinations and preoccupation with talking about sex. Contrary to themajority's conclusion, however, these 28 pages do not "cover all of the victim's relevantand material mental health issues." We acknowledge that some of the undisclosedrecords would have been, in some respects, redundant, as they include, among otherthings, some of the same material as the records that were provided.[FN1]But, contrary to the [*10]majority's assertion, criminaldefendants are entitled to more than just a "sample" of documents addressing a keywitness's mental health problems that could affect his or her testimony. In a case such asthis, which the majority correctly characterizes as presenting "a classic he-said she-saidcredibility determination," defendant must be allowed to consider and explore alllegitimate avenues of information relevant to his defense and to the victim's testimonyand potential cross-examination. The question here is not whether County Court shouldhave permitted the defense to enter certain documents into evidence or ask the victimabout certain topics at trial (compare People v Mandel, 48 NY2d 952, 953-954[1979], appeal dismissed and cert denied 446 US 949 [1980]), but whether thecourt should have provided defendant certain records that would have allowed thedefense to investigate information contained therein to determine if admissible evidencecould be gathered or proper questions could be formulated. More records should havebeen provided to defendant, addressing all of the victim's relevant mental health issues,so that defense counsel could fully investigate, prepare and advocate fordefendant.[FN2]
Certain records that were not provided to defendant relate to the victim's ability torecall events. "Where a primary prosecution witness is shown to suffer from a psychiatriccondition, the defense is entitled to show that the witness's capacity to perceive and recallevents was impaired by that condition" (People v Baranek, 287 AD2d 74, 78[2001] [citations omitted]; see People v Rensing, 14 NY2d 210, 213-214[1964]). While some disclosed records mentioned that the victim suffered from epilepsyor grand mal seizures in the past, those records did not associate her seizure activity withpossible memory loss as the undisclosed records did. A July 2006 record[FN3]discussed her history of seizures, which condition was treated successfully withmedication, but raised a question of possible seizure activity due to episodes where sheended up in places and could not remember going there, such as walking along a busyhighway. An August 2006 record also referred to times when the victim wound up on ahighway and spent the night in a shelter but could not remember how she got there.Similarly, a June 2006 record noted "recent dissociative[FN4]episodes [without] visible seizure activity" for which the author sought a [*11]neurological consultation. An October 2006 record noted"significant short term memory loss." According to a May 2007 record, the victim talkedabout times when she was out of control and related how it was sometimes scary to learnafterward what she had done or said because, at times, she has had no recollection of theevents. A progress note from June 2008 includes information given by the victim'smother that the victim acted strangely, related a feeling of bugs crawling on her face andsaid that she had taken morphine. An August 2008 psychiatric assessment found that thevictim's memory is selective, namely that she admits not being able to remember goodexperiences with a person if she had bad experiences with that person. This last recordcould be especially important, considering defendant's testimony that they hadconsensual sex and struggled afterward when the victim attempted to take his money.Defense counsel could have explored whether the victim was unable to remember anygood experiences with defendant due to this subsequent bad experience of the struggleover money, making defendant's testimony more plausible (see People v Hunter, 11 NY3d1, 6-7 [2008]). All of these records raise questions as to the victim's ability toaccurately recall the details of the alleged rape, making the records relevant and materialto the determination of defendant's guilt or innocence (see People v Baranek, 287AD2d at 79). These records were not merely redundant, because the records provided byCounty Court did not address these topics. Thus, defendant was entitled to all of theseundisclosed records.
Records also mention that the victim has suffered flashbacks from previous sexualabuse. This was noted in July 2006. While the majority correctly notes that a disclosedrecord from June 2006 mentions that the victim reported flashbacks, it is unclear if thatrecord is relating the flashbacks to prior sexual abuse or physical abuse. Disclosure ofadditional records could have helped to clarify that ambiguity. A March 2008 recordmentioned that the victim was "experiencing increased flashbacks of prior abuse."Another record from that same month discussed the flashbacks and noted that they weretriggered by, among other things, role playing in consensual sex with her boyfriend. Thisis another topic that defense counsel could have investigated in preparing for trial.
Additionally, a July 2006 record included the summary that the victim had "a verypoor perception of reality with distortions in her interpersonal relationships." That recordalso noted the victim's wishful thinking regarding relationships with males that she hadjust met, that she offered sexual favors to make friends, and that she became extremelyupset when these relationships did not last. Similarly, a January 2008 record noted thatthe victim was adamant that she had a realistic plan for her new boyfriend—whomshe met online but had never met in person, was more than 10 years older than her andlived out of state—to move to New York within a month and live with her. Thetherapist who wrote the note found that the victim was fixated on this fantasy, which thevictim considered her reality, of a relationship with this man she recently met online. AJune 2008 record indicated that the victim was invested in the fantasy of an idealrelationship. Proof of these fantasies and misconceptions of her relationships with maleswas also relevant and material to the defense.
Also relevant were records of prior allegations of sexual abuse that were possiblyfalse. Evidence of a prior rape complaint is admissible if there is sufficient proof that thecomplaint was false, and it suggests "a pattern casting substantial doubt on the validity ofthe charges made by the victim" or "indicate[s] a significant probative relation to suchcharges" (People v Mandel, 48 NY2d at 953; see People v Blackman, 90 AD3d 1304, 1310 [2011],lv denied 19 NY3d 971 [2012]; People v Pereau, 45 AD3d 978, 980 [2007], lvdenied 9 NY3d 1037 [2008]). In footnote [*12]4 ofits opinion, the majority mentions one October 2006 undisclosed mental health recordcontaining information about a possible false allegation of sexual abuse, but dismissesthe victim's allegations that her father "tried to rape her" and "pinned her up against thewall in a sexual position" by saying that "[t]he only suggestions that the allegation wasfalse" came from a mental health worker who listed the allegation as "unfounded" andthe victim's mother's "opinion that the father never sexually abused the victim." Althoughthe mental health records do not contain more details of the alleged attack, the records donot indicate that the mother's statements are mere "opinion"; one states that the mother"did continue to deny that [the victim's] father ever sexually abused her." This supportsdisclosure to defendant so he could investigate the details of the purportedly falseallegations prior to trial. Considering that the mother lived with both herhusband—who is the victim's father and the alleged perpetrator—and thevictim, the mother's statement that the abuse did not happen was an outright denial by afact witness rather than a mere "opinion." When a female claims that a male "tried to rapeher," the alleged conduct is inherently sexual in nature. Either the victim's mother and amental health worker concluded that the victim fabricated the allegations or they blindlyignored clear allegations of sexual abuse. The physical abuse by the father wasapparently reported to authorities and resulted in an indicated report of abuse; the recordsdo not clearly state whether the alleged attempted rape was similarly reported orinvestigated. The record mentioned by the majority states on its face that the victim's sexabuse allegations against her father were "unfounded," but it is unclear whether this termwas used in its legal sense, as in the context of child abuse allegations (see SocialServices Law § 422 [5]; 18 NYCRR 433.2 [l]).
The majority states repeatedly that this evidence would not be admissible, but that isnot the standard. Regardless of admissibility at trial, pursuant to controlling Court ofAppeals case law, defendant was entitled to records that are relevant to a potentially falseallegation of sexual abuse so that he could have investigated that claim prior to trial,consistent with his 6th Amendment right to cross-examine his accuser. Defendant wasnot even aware that this report existed, but he could have tried to establish the falsity ofthis prior claim if the record were disclosed, and he would only be permitted to discuss itin front of the jury if he "established a good faith 'basis for the allegation that the priorcomplaint was false' " (People vBridgeland, 19 AD3d 1122, 1123 [2005], quoting People v Gozdalski,239 AD2d 896, 897 [1997], lv denied 90 NY2d 858 [1997]). The first mentionof alleged sexual abuse of the victim by her father appears in a July 2004 record, aftershe revealed details of an attempted rape by him. Throughout numerous intake reportsand mental health histories taken during the ensuing years, answers to a question aboutpast physical and sexual abuse include statements about physical abuse by the father andsexual abuse by others,[FN5]but they do not mention sexual abuse by the father. Other records mention possiblesexual abuse in the home, without explanation.
The majority refers to the lack of proof that the victim ever recanted theseallegations. Two years after this undisclosed 2006 report, the victim continued to insistthat her father sexually abused her. A March 2008 record discussed the victim'sregressive behavior as related [*13]to her "recentdisclosures" of sexual abuse by her father.[FN6]That same record noted that the victim's mother "was able to be more genuine and spokeopenly about past traumas that [the victim] experienced," but—despite the victim'sinsistence and lack of recantation—the note also stated that the mother continuedto deny that the victim was ever sexually abused by her father. The mother had beenseparated from the father since 2004 and the record discloses that she harbored illfeelings towards him, making it unlikely that the mother was denying the abuse out ofloyalty to him. A July 2008 record also notes that the victim has alluded to past sexualabuse that was not substantiated by the mother.
These records alone may have provided defendant with a good faith basis that thevictim's prior rape allegation against her father was false. Even if they were not sufficientto prove falsity by themselves, defense counsel could have used these records as the basisfor an investigation and a subpoena of child protective services records regardingunfounded reports (see generally Social Services Law § 422 [4] [A] [e]).Although there are differences between a complaint of attempted rape of a young teen byher father and a complaint by an older teen of date rape, the circumstances of the priorallegation here suggest a pattern, casting doubt on the validity of the charge at issue atdefendant's trial (see People v Bridgeland, 19 AD3d at 1123-1124; comparePeople v Hunter, 11 NY3d at 7), and "indicate a significant probative relation tosuch charge[ ]" (People v Mandel, 48 NY2d at 953). While the majority finds therape by defendant as too unlike the alleged attempted rape by the victim's father, at thevery least defendant had a right to be advised of the prior allegation and provided anopportunity to address the similarity or presence of a pattern. When considered inconjunction with the many undisclosed records regarding the victim's impaired memory,hallucinations, ability to recall events, sexual fantasies and flashbacks, the failure todisclose these records was error. The undisclosed records all raise issues that wouldaffect the victim's credibility or ability to recall events, and the allegations of prior sexualassault—if proven to be false—would be extremely damaging to thePeople's case.[FN7]Regardless of their admissibility at trial, defendant was entitled to be aware of andafforded the opportunity to investigate these matters prior to trial.[FN8]By not disclosing these records, County Court deprived defendant of the ability to fullyprepare his defense, in violation of his 6th Amendment rights to confront andcross-examine the key adverse witness. He is, therefore, entitled to a new trial.
Mercure, J.P., concurs. Ordered that the judgment is affirmed.
Footnote 1: A defendant is guilty ofthe crime of rape in the first degree "when he or she engages in sexual intercourse withanother person: [b]y forcible compulsion" (Penal Law § 130.35 [1]). As no disputeexists that defendant and the victim engaged in sexual intercourse, the issue heredevolves to whether such intercourse was consensual or by forcible compulsion, whichmay be by "use of physical force" or "a threat, express or implied, which places a personin fear of immediate death or physical injury to himself, herself or another person" (PenalLaw § 130.00 [8]).
Footnote 2: In his pro se brief,defendant also challenges the legal sufficiency of the evidence. Although this argumentwas not preserved by his general motions to dismiss for failure to present a prima faciecase (see People v Terry, 85 AD3d at 1486), we " 'necessarily review theevidence adduced as to each of the elements of the crimes in the context of our review ofdefendant's challenge regarding the weight of the evidence' for which there is nopreservation requirement" (People v Newkirk, 75 AD3d 853, 855 [2010], lvdenied 16 NY3d 834 [2011], quoting People v Caston, 60 AD3d 1147, 1148-1149 [2009][citation omitted]).
Footnote 3: The vast majority of thedocuments disclosed were dated, revealing a picture of the victim's mental healthbetween the ages of 13 and 18. One of the documents disclosed contains an assessmentof the victim taken on the day of the rape.
Footnote 4: The victim's mentalhealth records reveal a very troubled relationship with her father, who physically abusedher during a limited amount of time during the victim's lifetime—approximatelysix months when the victim was 13—when he resided with the family. The fullextent of details of the abuse alleged by the victim are that he "tried to rape her,"describing that he "pinned her up against the wall in a sexual position and she can notrecall how she got away." Her mental health records do not contain any other detailsfrom the victim pertaining to sexual abuse or that she ever recanted her statements. Theonly suggestions that the allegation was false come from a mental health worker at alocal childcare institution that was treating the victim when she was 13 who noted,without elaboration, that the allegation was "unfounded" and the mother's reportedopinion that the father never sexually abused the victim.
Footnote 5: Calhoun was evenpermitted to provide a layperson's definition, explaining that hypersexual means "she [is]very hot in the pants."
Footnote 1: County Court providedrecords noting that the victim experienced visual and auditory hallucinations at differenttimes between 2003 and 2007. Other records indicated earlier hallucinations, gave moredetails on some of the more recent ones and noted that the victim denied that what shesensed was a hallucination. Although those records probably should have been turnedover as well, we will not go so far as to say that it was an abuse of discretion for the courtto have limited the number of documents it provided that contain similar information. Onremittal, however, we would provide those documents to defendant as well.
Footnote 2: Some of the records thatwere disclosed did not contain the name of the author, the source of information, the datethey were created or where the original record was located. Such information shouldhave been provided, if available (and it generally was), so that defense counsel couldplace the information in context. For example, hallucinations in 2003 may not be asrelevant or important as hallucinations that occurred closer in time to the incident.
Footnote 3: None of the recordsreferred to in this dissent by a specific month and year were disclosed to defendant; all ofthem should have been.
Footnote 4: This term refers to adetachment from one's surroundings, consciousness, memory or identity.
Footnote 5: The answers werealso inconsistent regarding her prior sexual abuse history that apparently is not contested,sometimes mentioning an incident when she was seven years old, sometimes mentioningan incident when she was 12, and sometimes including both incidents.
Footnote 6: This record does notrefer to the 2004 or 2006 records of the victim's prior disclosure.
Footnote 7: Prior to trial, thePeople offered defendant a plea to a misdemeanor and time served, presumably based onthe People's recognition of the serious problems with the victim's credibility.
Footnote 8: Compared to the 28pages that County Court provided to the defense, there are an additional 34 pages that,pursuant to prevailing case law, should also have been provided. By our calculations, thismeans that when preparing his defense prior to trial, defendant had less than 50% of thedocuments to which he was entitled.