| People v Caba |
| 2009 NY Slip Op 07521 [66 AD3d 1121] |
| October 22, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Hussain M.Caba, Appellant. |
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Lahtinen, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered January 3, 2008, upon a verdict convicting defendant of the crime of criminal sexual actin the second degree.
In June 2006, defendant was at the residence of the victim's aunt and uncle in the City ofBinghamton, Broome County. The victim, then 14 years old, often spent weekends there withher five cousins who ranged in age from 8 to 20 years. Defendant, who was then 22 years oldand had apparently previously had a relationship with the oldest of the victim's cousins,occasionally visited the Binghamton residence with a couple of his friends. During one suchvisit, defendant and the victim were allegedly alone in an apartment on the property, anddefendant asked the victim to perform oral sex upon him, which she did. During the ensuingmonth, the victim began to reveal to various family members the events that had transpired and,eventually, in mid-July 2006, she told her father of her activity with defendant. Her fathercontacted police and defendant was indicted for criminal sexual act in the second degree. He wasconvicted of the charged crime following a jury trial and sentenced to one year in jail. Defendantappeals.
Defendant initially contends that his conviction was against the weight of the evidence.Since a different verdict would not have been unreasonable, we "must, like the trier of fact [*2]below, weigh the relative probative force of conflicting testimonyand the relative strength of conflicting inferences that may be drawn from the testimony"(People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citationsomitted]; see People v Danielson, 9NY3d 342, 348 [2007]). The ages of the victim and defendant are not disputed. Conflictingevidence was presented, however, as to whether the alleged sexual conduct occurred. The victimdescribed the incident in her testimony. Defendant, on the other hand, testified in his owndefense and denied that the incident ever occurred. The victim's oldest cousin claimed thatdefendant acknowledged the acts to her, but defendant countered that she was a rejected formerparamour looking for revenge. This evidence, as well as the other proof at trial, painted starklycontrasting versions of events. The jury, which had the advantage of hearing the witnesses andobserving their demeanor (see People vRomero, 7 NY3d 633, 644-645 [2006]), made the difficult credibility determinationsand, upon review of the record, we find the verdict supported by the weight of the evidence.
We find merit, however, in two issues advanced by defendant which, although not properlypreserved, nevertheless cause us to conclude that he was deprived of a fair trial and, accordingly,we exercise our discretion and reverse in the interest of justice (see CPL 470.15 [6] [a];People v Skinner, 298 AD2d 625, 626-627 [2002]). First, the victim's version of eventswas repeatedly bolstered by statements she reportedly made to various people well after a timeframe that could be considered as a prompt outcry (see People v McDaniel, 81 NY2d 10,16-17 [1993]). These statements did not otherwise fall within a recognized exception to the ruleagainst bolstering through the use of prior consistent statements to attempt to strengthen awitness's credibility (see People v Buie, 86 NY2d 501, 510-511 [1995]).
Second, the prosecutor cross-examined an important fact witness called by defendantregarding the fact that the oath had been administered to him by the clerk using a book thatostensibly was not sacred to that witness's particular religion. The inquiry on this topic, whichwas pursued further on redirect and then by County Court, veered too far into an impermissiblediscussion in front of the jury of various aspects of the witness's religious beliefs. This line ofquestioning by the prosecutor was directed at the witness's credibility. "With limited exceptionsnot relevant here, any attempt to discredit or otherwise penalize a witness because of his [or her]religious beliefs or for the exercise of his [or her] right to affirm the truth of his [or her]testimony is improper, because those factors are irrelevant to the issue of credibility" (Peoplev Wood, 66 NY2d 374, 378 [1985] [citations omitted]). An oath or affirmation is sufficientif "administered in a form calculated to awaken the conscience and impress the mind of theperson taking it in accordance with his [or her] religious or ethical beliefs" (CPLR 2309 [b];see People v Wood, 66 NY2d at 378). If the prosecutor was concerned that the oathadministered by the clerk to this witness was insufficient because the clerk did not produce abook sacred to the witness's religion, the appropriate approach would have been to requestquestioning of the witness outside the presence of the jury to determine whether he had beenimpressed with his duty to testify truthfully (see United States v Kalaydjian, 784 F2d 53,55 [2d Cir 1986]; 3 Mueller and Kirkpatrick, Federal Evidence § 6:8 [3d ed]).
Since this case turned on the issue of credibility, the combined effect of these twoerrors—both of which involved credibility of witnesses—cannot be deemedharmless (see People v Allen, 13AD3d 892, 894 [2004], lv denied 4 NY3d 883 [2005]).
Peters, J.P., Rose, Kane and Malone Jr., JJ., concur. Ordered that the judgment is reversed,as a matter of discretion in the interest of justice, and matter remitted to the County Court ofBroome County for a new trial.