| People v Serrano-Gonzalez |
| 2017 NY Slip Op 00043 [146 AD3d 1013] |
| January 5, 2017 |
| Appellate Division, Third Department |
[*1](January 5, 2017)
| The People of the State of New York,Respondent, v Samuel Serrano-Gonzalez, Appellant. |
Michael P. Mansion, Latham, for appellant, and appellant pro se.
Karen Heggen, District Attorney, Ballston Spa (Kirstin T. Foust of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Saratoga County(Scarano, J.), rendered May 17, 2012, upon a verdict convicting defendant of the crimesof rape in the first degree and sexual abuse in the first degree.
Defendant was charged by indictment with one count of rape in the first degree, onecount of sexual abuse in the first degree and one count of criminal obstruction ofbreathing or blood circulation. The charges stemmed from allegations that defendantthreatened and choked the victim while forcibly raping her all before he continued tothreaten her at knife point until she escaped and ran to a nearby police station. After ajury trial, defendant was convicted of one count of rape in the first degree and one countof sexual abuse in the first degree. County Court sentenced defendant, as a second felonyoffender, to concurrent prison terms of 20 years followed by 25 years of postreleasesupervision for his conviction of rape in the first degree and seven years followed by 15years of postrelease supervision for his conviction of sexual abuse in the first degree.Defendant now appeals, and we affirm.
County Court properly allowed the victim to testify regarding her knowledge ofdefendant's HIV status. Defendant contends that the value of the evidence referencing hisHIV status was more prejudicial than probative and that he otherwise has aconstitutionally protected privacy interest that was violated by the introduction of suchevidence. Defendant's HIV status was directly at issue in regard to whether he and thevictim engaged in consensual intercourse. The victim testified that she and defendant hadpreviously had a consensual sexual relationship. [*2]Thereafter, defendant was diagnosed with HIV. The victimindicated that, as a result of defendant's diagnosis, she and defendant discussed theirrelationship and agreed that it would thereafter be "platonic." Thus, defendant's HIVstatus was highly probative evidence as necessary background information regarding thevictim's choice to stop having sexual intercourse with defendant. Moreover, CountyCourt instructed the jury that defendant's HIV status could not be considered aspropensity or disposition evidence in relationship to the charged crimes. Considering theforegoing, County Court did not abuse its discretion in permitting the victim's testimonyon the issue (see People vPham, 118 AD3d 1159, 1161 [2014], lv denied 24 NY3d 1087 [2014];People v Higgins, 12 AD3d775, 778 [2004], lv denied 4 NY3d 764 [2005]).
Further, having failed to raise to County Court the contention that he had aconstitutional privacy interest that rendered such evidence inadmissible, defendant didnot preserve that contention for our review (see People v Nelson, 27 NY3d 361, 367-368 [2016],cert denied — US &mdash, 137 S Ct 175 [Oct. 3, 2016]). In any event, asthe victim, rather than a state actor, provided the evidence at trial related to defendant'sHIV status, defendant's constitutional privacy rights could not have been impinged upon(compare Doe v City of New York, 15 F3d 264, 268 [2d Cir 1994]; seegenerally People v Mendoza, 211 AD2d 493, 493 [1995]).
Next, County Court did not abuse its discretion in preventing defendant fromintroducing evidence on a collateral matter regarding the victim's statements in theaftermath of defendant's HIV diagnosis. Defendant contends that the court erred indenying his request to call one of his nurses to testify that, after the HIV diagnosis andapproximately two weeks before the events leading to his convictions, the victim told thenurse that she planned to "stay together" with defendant. The victim's conversation withthe nurse occurred well after the victim learned of defendant's HIV diagnosis. Thus, thevictim was not under the stress of a startling event and, therefore, any statement that shemade was not an excited utterance (see People v Hansen, 290 AD2d 47, 54[2002], affd 99 NY2d 339 [2003]). Moreover, inasmuch as the subject statementdoes not address the victim's state of mind as to a future consensual sexual relationshipwith defendant, the court did not abuse its discretion in finding that the evidence was notadmissible pursuant to the state of mind exception to the rule against hearsay (seegenerally People v Aska, 91 NY2d 979, 981 [1998]). Finally, as the victim was notseeking any diagnosis or treatment in having a discussion with defendant's nurse, thestatement is not admissible as relevant medical treatment or diagnosis (see People vThomas, 282 AD2d 827, 828 [2001], lv denied 96 NY2d 925 [2001]).
Moreover, the evidence was not admissible as impeachment evidence. "[A] partymay not introduce extrinsic evidence on a collateral matter solely to impeach credibility"(People v Alvino, 71 NY2d 233, 247 [1987]). "The purpose of this rule is judicialeconomy, to prevent needless multiplication of issues in a case, and to insure that the juryis not confused with irrelevant evidence" (id. at 248). "However, that general ruleis not applied where the issue to which the evidence relates is a material one, that is, onethat the jury must decide" (People v Mink, 267 AD2d 501, 503 [1999] [citationomitted], lv denied 94 NY2d 950 [2000]). Here, the victim testified to the factthat, after defendant was diagnosed with HIV, she planned to continue to live with himand did not intend to abandon him or cut off their relationship. Nonetheless, oncross-examination, the victim denied having told the nurse that she intended to "staytogether" with defendant. Defendant sought to introduce the nurse's testimony to showthat the victim was "telling a lie." Assuming for the sake of argument that the phrase"stay together" could be construed as referring to a sexual relationship, defendant'simpeachment efforts related to proof regarding the victim's mental state approximatelytwo weeks before the events underlying the convictions. The jury did not need todetermine the victim's mental state in the initial aftermath of defendant's diagnosis.Accordingly, County Court did not abuse its discretion in precluding [*3]defendant from attempting to impeach the victim as to thatcollateral issue (see People vOlivares, 34 AD3d 602, 602 [2006], lv denied 9 NY3d 879 [2007]; People v Richardson, 28 AD3d1002, 1004 [2006], lv denied 7 NY3d 817 [2006]; People v Alexander, 16 AD3d515, 515-516 [2005], lv denied 5 NY3d 758 [2005]). In any event, any errorin failing to admit such evidence would be harmless. Defendant testified to hisrecollection of the victim's statements to the nurse, and the victim's testimony regardingthe rape and abuse was otherwise corroborated by medical[FN*] and DNA evidence (see People v Maxam, 135AD3d 1160, 1162 [2016], lv denied 27 NY3d 1135 [2016]).
In addition, County Court properly allowed for the redaction of portions of a DNAtest of the victim's vulvar swab referring to DNA of an additional donor not linked todefendant and properly precluded defendant from calling a DNA expert to testifyregarding the additional donor evidence. Defendant admitted, when arguing for theadmission of the evidence, that he wanted to use it to examine the victim as to her sexualhistory with persons other than defendant. Introducing such evidence for that purpose"[falls] squarely within the ambit of the Rape Shield Law, which generally prohibits'[e]vidence of a victim's sexual conduct' in a prosecution for a sex offense under PenalLaw article 130 (CPL 60.42)" (People v Halter, 19 NY3d 1046, 1049 [2012]).Accordingly, County Court properly precluded that evidence (see People vHalter, 19 NY3d at 1049; People v Mitchell, 10 AD3d 554, 555 [2004], lvdenied 3 NY3d 759 [2004]).
County Court properly granted the People's motion to redact references to thevictim's past instances of self-inflicted and defendant-inflicted cutting in her medicalrecords. A victim's past psychiatric and medical history has been properly deemedinadmissible in instances where the records are not "probative of the victim's veracity orany tendency to falsely report sex crimes" (People v Murphy, 188 AD2d 742, 744[1992], lv denied 81 NY2d 890 [1993]; see People v Graham, 117 AD2d832, 834 [1986], lv denied 68 NY2d 770 [1986]). Here, the victim's medicalrecords contained notes indicating that defendant had previously cut her forearm and thatshe had also previously cut her own forearm. There is no evidence within the medicalrecords suggesting that these reports are false. Accordingly, as the records themselves arenot probative as to veracity or false reports of sex crimes, the references to cutting wereproperly redacted (see People v Murphy, 188 AD2d at 744; People vGraham, 117 AD2d at 834).
Next, County Court did not abuse its discretion in its Sandoval ruling.County Court granted the People's motion to question defendant as to multiplemisdemeanor and felony convictions, many of which related to the possession of acontrolled substance. The court precluded the People from mentioning the sentences orthe underlying facts of the convictions so long as defendant admitted to them, and thecourt also gave limiting instructions that the convictions could not be used as proof of thecommission of the crimes at issue. Considering the balance that the court struck as to thescope of the inquiry and that the convictions implicated defendant's willingness to placehis own interests above that of society's, the Sandoval ruling was proper (see People v Gangar, 79 AD3d1262, 1263-1264 [2010], lv denied 16 NY3d 831 [2011]; People v Peele, 73 AD3d1219, 1220 [2010], lv denied 15 NY3d 894 [2010]).
Finally, defendant's sentence does not establish that he was punished for exercisinghis [*4]trial right and it is also not harsh or excessive."The fact that the sentence imposed is longer than one rejected during plea negotiationsdoes not establish that defendant was punished for exercising his constitutional right totrial" (People v Foulkes,117 AD3d 1176, 1177 [2014] [citations omitted], lv denied 24 NY3d 1084[2014]; see People vSapienza, 91 AD3d 988, 989 [2012]). Further, given the nature of the crime,defendant's criminal history and the fact that the court gave less than the maximumallowable sentence, we find no abuse of discretion or extraordinary circumstances thatwould warrant a reduction in defendant's sentence (see People v Peart, 141 AD3d 939, 942 [2016], lvdenied 28 NY3d 1074 [2016]; People vThiel, 134 AD3d 1237, 1241 [2015], lv denied 27 NY3d 1156 [2016]).Defendant's remaining contentions have been considered and are without merit.
Lynch, Rose, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Despite defendant'stestimony that he engaged in consensual unprotected sex with the victim, a nurse whoexamined the victim explained that the victim had red marks on her neck, bruising on herarms and a puncture wound on her thigh, all of which corroborated the victim'stestimony.