| People v Loftin |
| 2010 NY Slip Op 02619 [71 AD3d 1576] |
| March 26, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TyroneLoftin, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Brenton P. Dadey of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedOctober 14, 2008. The judgment convicted defendant, upon a jury verdict, of rape in the firstdegree and sexual abuse in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed as a matterof discretion in the interest of justice and on the law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofrape in the first degree (Penal Law § 130.35 [1]) and sexual abuse in the first degree(Penal Law § 130.65 [1]). We reject the contention of defendant that the People failed todisclose certain Brady material, i.e., information that there was a pending charge againstthe victim for petit larceny (see generally People v Vilardi, 76 NY2d 67, 73 [1990]). ThePeople provided defendant with the victim's prior criminal history before jury selection, and hetherefore was aware of the pending charge against the victim in time to use that informationeffectively at trial (see People v Comfort, 60 AD3d 1298, 1300 [2009], lv denied12 NY3d 924 [2009]).
We agree with defendant, however, that County Court erred in precluding him fromcross-examining the victim with respect to the petit larceny charge. According to that charge, thevictim had assaulted and robbed an ex-boyfriend but subsequently reported to the police that itwas the ex-boyfriend who had assaulted her. Those allegations are similar to allegations made bydefendant in the instant case, and thus defendant sought to cross-examine the victim concerningthat charge "in good faith and with a reasonable basis in fact" (People v Jones, 24 AD3d815, 816 [2005], lv denied 6 NY3d 777 [2006]). Although the charge against the victimwas adjourned in contemplation of dismissal prior to the commencement of defendant's trial, thatdoes not constitute a dismissal on the merits, and it therefore does not "negate[ ] the elements ofgood faith and [basis in fact]" (id.). Under the circumstances of this case, "where the'issue of the credibility of defendant vis-à-vis the prosecution witnesses [is] crucial,' " wecannot conclude that the court's error is harmless (People v Ayrhart, 101 AD2d 703, 704[1984]; see generally People v Crimmins, 36 NY2d 230, 237 [1975]).
We further agree with defendant that the court erred in failing to conduct aVentimiglia hearing with respect to his statements to police that, "in the past[,] he hadtried forcing sex from [*2]women" and that "it was difficult totake sex if they didn't want to give it up." Although defendant failed to preserve his contentionfor our review inasmuch as he failed to object to the admission of testimony concerning thosestatements (see People v Powell, 303 AD2d 978 [2003], lv denied 100 NY2d565 [2003], 1 NY3d 541 [2003]), we nevertheless exercise our power to review it as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]; cf. People v Johnson,233 AD2d 887 [1996], lv denied 89 NY2d 1095 [1997]). The court was required todetermine whether the probative value of those statements outweighed the potential for prejudiceinasmuch as those statements were not admissions related to the instant charges but, rather, theyconstituted evidence of prior bad acts (see People v Robinson, 202 AD2d 1044 [1994],lv denied 83 NY2d 1006 [1994]). In light of the importance of the witnesses' credibilityin this case, as noted above, we cannot conclude that the court's error is harmless (seegenerally Crimmins, 36 NY2d at 241-242; People v Moore, 59 AD3d 809, 811-813[2009]). We have reviewed defendant's remaining contentions and conclude that they are withoutmerit. Present—Scudder, P.J., Peradotto, Lindley and Gorski, JJ.