| People v Hicks |
| 2012 NY Slip Op 03289 [94 AD3d 1483] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rayland L.Hicks, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), renderedFebruary 28, 2008. The judgment convicted defendant, upon a jury verdict, of burglary in thefirst degree, aggravated sexual abuse in the second degree and aggravated criminal contempt.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand a new trial is granted on counts one, two and four of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofburglary in the first degree (Penal Law § 140.30 [2]), aggravated sexual abuse in thesecond degree (§ 130.67 [1] [a]), and aggravated criminal contempt (§ 215.52 [1]).Defendant's contention that a mistrial should have been granted when the victim's testimony wasbolstered is unpreserved for our review inasmuch as defendant did not ask for a further curativeinstruction after County Court sustained his objection to the admissibility of the testimony, nordid he renew his motion for a mistrial (see CPL 470.05 [2]; see also People vJones, 219 AD2d 736, 736 [1995], lv denied 86 NY2d 873 [1995]). We decline toexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
We reject defendant's contention that the court abused its discretion in denying his motion tofile a late alibi notice with respect to a certain defense witness (see CPL 250.20 [1]; People v Owens, 26 AD3d 816[2006], lv denied 7 NY3d 760 [2006]). We agree with defendant, however, that the courterred in precluding the testimony of that same defense witness concerning defendant's presenceand activity at least one hour before the crimes occurred. The crimes occurred at 11:45 p.m. onSeptember 4, 2007. The victim knew defendant from a previous relationship, and they had achild together. According to defendant's trial testimony, the victim telephoned him earlier in theevening, demanding money for child support. Defendant testified that he drove to the victim'sresidence with the witness in question at approximately 10:30 p.m. to deliver some money to thevictim and that, while in the residence, he observed another "dude" there. Defendant furthertestified that, after remaining at the residence for a few minutes, defendant then left.
According to the victim's trial testimony, however, she had not seen defendant since [*2]August 2007 until the night of the crimes and did not telephone himthat night. The victim's testimony made no mention of any other person being present in herresidence that evening, and she indicated that she was napping on the couch at the time of andprior to the crimes. Thus, the proposed testimony of defendant's witness would have directlycontradicted the victim's version of events leading up to the crimes.
We agree with defendant that the proposed testimony of the defense witness in question didnot constitute alibi testimony. Indeed, an alibi defense is defined in CPL 250.20 (1) as "a trialdefense that at the time of the commission of the crime[s] charged [defendant] was atsome place or places other than the scene of the crime" (emphasis added). Adhering to thatstatutory definition and the limited time frame encompassed by its express language, theproposed testimony of the defense witness "would not have accounted for the defendant'swhereabouts during the crime[s] or placed him away from the crime scene shortly thereafter,"and thus he was not in fact offering alibi testimony (People v Bennett, 128 AD2d 540,540 [1987], lv denied 69 NY2d 1001 [1987]; see People v Evans, 289 AD2d 417[2001], lv denied 98 NY2d 637 [2002]). We reject the People's contention that theproposed testimony would "implicate an alibi" and cause the jury to speculate that defendant hadan alibi defense. "[T]he fact that such [testimony] may, in addition to its intended purpose, alsobe taken as circumstantial alibi evidence does not require that alibi notice be given" (People v Green, 70 AD3d 39, 44[2009]). Thus, we conclude that the court's preclusion of the testimony of the defense witness inquestion was an abuse of discretion that violated defendant's constitutional right to callwitnesses—"a right 'recognized as essential to due process' " (id. at 45, quotingChambers v Mississippi, 410 US 284, 294 [1973]). It cannot be said in light of the less thanoverwhelming evidence of defendant's guilt that there is "no reasonable possibility that the errormight have contributed to defendant's conviction and that it was thus harmless beyond areasonable doubt" (People v Crimmins, 36 NY2d 230, 237 [1975]).
In view of our determination to grant a new trial, there is no need to consider defendant'sremaining contentions. Present—Scudder, P.J., Fahey, Carni, Sconiers and Martoche, JJ.