| People v Gomez |
| 2010 NY Slip Op 09531 [79 AD3d 1065] |
| December 21, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LuisGomez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Sharon Y.Brodt of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered January 11, 2008, convicting him of rape in the second degree, course of sexual conductagainst a child in the second degree, sexual abuse in the first degree, and endangering the welfare of achild, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the facts and as a matter of discretion in the interest ofjustice, and the matter is remitted to the Supreme Court, Queens County, for a new trial.
The defendant was accused, inter alia, of engaging in sexual misconduct with the younger sister ofhis common-law wife during the period of time from November 1998 through May 1999, when thechild was nine years old. The defendant was also charged with rape of the child sometime betweenNovember and December 2002. The child never reported any of this conduct until 2006, when sherevealed the alleged abuse to her mother. The defendant denied the accusations and contended that thechild was upset with him after he and his wife sent her from Florida, where the three had been livingtogether, to live with her mother in New York. After trial, the defendant was convicted of rape in thesecond degree, course of sexual conduct against a child in the second degree, sexual abuse in the firstdegree, and endangering the welfare of a child.
On appeal, the defendant argues, inter alia, that the Supreme Court committed reversible errorwhen it precluded him from presenting two witnesses. These witnesses were husband and wife wholived in North Carolina; at trial, the child described the husband as an "old family friend." During a trip inwhich the child was being driven by her sister from Florida to New York, so that the child could livewith her mother, they stayed over at the witnesses' house. When asked by the Supreme Court to"elucidate . . . the relevanc[e] of the[ir] testimony," defense counsel stated that thesewitnesses would testify that when the child visited, they discussed the situation about her returning toNew York; that the child told the husband that the abuse never happened; that she wanted to continueto live in Florida with her sister and the defendant; that she even "beg[ged]" them to go back to Florida;and that there were "no problems" in Florida. This was in contrast to the child's earlier trial testimony,wherein she denied that she made any statements concerning the alleged abuse to the witnesses, andshe testified that the extent of her conversation with the witnesses in North Carolina was "[j]ust hi, howare you and how was school." The Supreme Court precluded these witnesses from testifying on thebasis that their testimony would have been collateral. This was error.[*2]
"Whether rooted directly in the Due Process Clause of theFourteenth Amendment . . . or in the Compulsory Process or Confrontation clauses of theSixth Amendment, the [United States] Constitution guarantees criminal defendants 'a meaningfulopportunity to present a complete defense' " (Crane v Kentucky, 476 US 683, 690 [1986][citations omitted], quoting California v Trombetta, 467 US 479, 485 [1984]). "The denial ofthe opportunity to contradict answers given by a witness to show bias, interest or hostility. . . deprive[s] [a] defendant of his right to confrontation" (People v Vigliotti, 203AD2d 898, 899 [1994]; see People v Bartell, 234 AD2d 956 [1996]). Moreover, proofwhich tends to "establish a reason to fabricate is never collateral" (People v Hudy, 73 NY2d40, 56 [1988]; see People v McFarley,31 AD3d 1166 [2006]).
Here, the defendant sought to elicit testimony which would have contradicted the child's previousanswers regarding what was discussed on the stopover visit in North Carolina. The testimony alsowould have tended to buttress the defendant's contention that the child fabricated her allegations soonafter the defendant and his wife sent the child back to New York to live with her mother. Accordingly,under these circumstances, the Supreme Court improvidently exercised its discretion in precluding thewitnesses from testifying. Furthermore, since the evidence against the defendant was not overwhelmingand there is a reasonable possibility that this error contributed to the verdict of guilt, it cannot bedeemed harmless (see People v Sampel,16 AD3d 1023 [2005]; see generallyPeople v Grant, 7 NY3d 421 [2006]; People v Crimmins, 36 NY2d 230 [1975]).
The defendant's remaining contentions either are without merit or have been rendered academic inlight of our determination. Skelos, J.P., Covello, Balkin and Sgroi, JJ., concur.