| People v Rosario |
| 2009 NY Slip Op 09507 [68 AD3d 600] |
| December 22, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Angel Rosario, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Matthew C. Williams of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered July 18,2006, convicting defendant, after a jury trial, of course of sexual conduct against a child in thefirst degree, rape in the first and second degrees and incest in the third degree, and sentencinghim to an aggregate term of 15 years, unanimously reversed, on the law, and the matterremanded for a new trial.
The trial court improperly admitted into evidence a prior consistent statement by thecomplainant, thereby allowing the impermissible bolstering of the complainant's testimony(see People v McDaniel, 81 NY2d 10, 16 [1993]; People v McClean, 69 NY2d426, 428 [1987]; People v VanNess, 43 AD3d 553, 554-555 [2007], lv denied 9 NY3d 965 [2007]), an errorthat is especially prejudicial when the complainant's credibility is the linchpin of a conviction.The note that the complainant wrote approximately one year before she made the accusation tothe police cannot satisfy the "prompt outcry" exception to the hearsay rule relied on by the trialcourt, in view of the months-long delay between the charged conduct and the writing of the note,especially in the absence of a sufficient explanation for the complainant's not confiding insomeone else earlier (see People vBanks, 27 AD3d 953, 954-955 [2006], lv denied 7 NY3d 752 [2006]; People v Allen, 13 AD3d 892,894-895 [2004], lv denied 4 NY3d 883 [2005]). According to the complainant'stestimony, defendant's conduct ended around January or February 2004, whereas the note waswritten some time around May 2004, which latter date was confirmed by the more definitivetestimony of the note's recipient, the complainant's boyfriend.
Nor can we conclude that the note was admissible as a proper rehabilitative response to aclaim by the defense that the complainant's accusation was a recent fabrication (seeMcDaniel, 81 NY2d at 18; People v Davis, 44 NY2d 269, 277 [1978]). First, thisexception allows the use of prior consistent statements to rehabilitate a witness when the defenseasserts that the accusation was recently fabricated, since "it would be unjust to permit a party tosuggest that a witness . . . is fabricating a story without allowing the opponent todemonstrate that the witness had spoken similarly even before the alleged incentive to falsifyarose" (McDaniel, 81 NY2d at 18). Here, however, the prior consistent statement wasnot used to rehabilitate the complainant. [*2]It was offered on thePeople's direct case, indeed, in the course of the complainant's direct testimony, in anticipation ofa defense of recent fabrication; the defense had not yet had any opportunity to make that claim infront of the jury. The rehabilitative purpose of the exception was therefore not served by thenote's admission.
Secondly, such use of a prior consistent statement to rehabilitate a witness is onlypermissible when the prior consistent statement predated the point in time when,according to the defense, the complainant's purported motive to fabricate arose (seeMcDaniel at 18). Here, when the note was admitted into evidence, the defense had donenothing to specify to the jury its claim regarding when and how the complainant had decided tomake a false accusation against defendant. It could as easily have claimed that the complainant'smotivation to fabricate the accusation arose years earlier, in response to defendant's controllingand overbearing conduct over the years, rather than on June 24, 2005, when the complainant firstdefied defendant after he denied her permission to go to the movies with her boyfriend. Defensecounsel's statements in voir dire only generally suggested that a child might be motivated tomake up a false report if she "backs herself in[to] a compromising position," and did notestablish a time frame in which the complainant might have backed herself into such a corner.Similarly, counsel's opening statement to the jury did not specify the moment at which thecomplainant might have developed a motive to fabricate. Therefore, the note was admittedwithout any basis to conclude that it predated the claimed fabrication.
Since the trial court ruled that it would admit the prior consistent statement under the promptoutcry exception, defense counsel had neither any occasion nor an obligation to interpose asuperfluous objection that the note's admission was improper rebuttal to a recent fabricationclaim. Concur—Gonzalez, P.J., Saxe, Catterson, McGuire and Acosta, JJ.