| People v Fisher |
| 2013 NY Slip Op 01847 [104 AD3d 868] |
| March 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lemaine Fisher, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and ThomasM. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Guzman, J.), rendered July 8, 2011, convicting him of endangering the welfare of achild (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, on the facts, and in the exercise ofdiscretion, the conviction of endangering the welfare of a child, as charged in count fiveof the indictment, and the sentence imposed thereon, are vacated, that count of theindictment is dismissed, and the matter is remitted to the Supreme Court, Kings County,for further proceedings on count six of the indictment, charging the defendant withendangering the welfare of child.
The defendant, a 36-year-old high school English teacher, was charged, inter alia,with rape in the third degree (statutory rape), criminal sexual act in the third degree, andtwo counts of endangering the welfare of a child, based on allegations that he had sexwith, and engaged in inappropriate phone conversations with, the complainant, who wasthen a 16-year-old student of his. After a trial, the jury acquitted the defendant of rape inthe third degree and criminal sexual act in the third degree, but convicted him of bothcounts of endangering the welfare of a child.
The defendant contends that the evidence was legally insufficient to establish hisguilt beyond a reasonable doubt of endangering the welfare of a child, as charged incounts five and six of the indictment. His contention with respect to count five of theindictment is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that theevidence was legally sufficient to establish, beyond a reasonable doubt, the defendant'sguilt of endangering the welfare of a child under both counts. Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guiltof endangering the welfare of a child, as charged in count six of the indictment, was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
However, with respect to the count five of the indictment, charging the defendantwith endangering the welfare of a child in violation of Penal Law § 260.10 (1), wefind that the verdict of [*2]guilt was against the weight ofthe evidence. " '[W]eight of the evidence review requires a court first to determinewhether an acquittal would not have been unreasonable. If so, the court must weighconflicting testimony, review any rational inferences that may be drawn from theevidence and evaluate the strength of such conclusions. Based on the weight of thecredible evidence, the court then decides whether the [trier of fact] was justified infinding the defendant guilty beyond a reasonable doubt' " (People v Madison, 61 AD3d777, 778 [2009], quoting People v Danielson, 9 NY3d 342, 348 [2007]).
Under the circumstances presented here, an acquittal on count five of the indictmentwould not have been unreasonable and, further, the verdict of guilt on that count wasagainst the weight of the credible evidence (see People v Zephyrin, 52 AD3d 543 [2008]). Inconducting our weight of the evidence review, we consider the jury's acquittal on othercounts, and, under the circumstances of this case, find it supportive of a reversal of theconviction of count five of the indictment (see People v Otway, 71 AD3d 1052, 1054 [2010]; People v Franco, 11 AD3d710, 711 [2004]). Here, the defendant was charged with, but acquitted of, rape in thethird degree and criminal sexual act in the third degree, and the alleged conduct thatformed the basis of those charges was essentially the same alleged conduct that formedthe basis of count five. Once the jury discredited the complainant's testimony withrespect to the charges of rape and criminal sexual act, the record was devoid of anyevidence that the defendant "knowingly act[ed] in a manner likely to be injurious to thephysical, mental or moral welfare of a child less than seventeen years old" (Penal Law§ 260.10 [1]), as charged in count five of the indictment. Accordingly, theconviction of endangering the welfare of a child, as charged in count five of theindictment, and the sentence imposed thereon, must be vacated, and that count of theindictment must be dismissed.
Furthermore, a new trial is required on count six of the indictment, chargingendangering the welfare of a child (see Penal Law § 260.10 [1]), based onallegations that the defendant masturbated and described sexual acts over the phone withthe complainant, since the cumulative effect of certain trial errors deprived the defendantof a fair trial (see People vMaier, 77 AD3d 681, 682 [2010]; People v Roll, 1 AD3d 617 [2003]).
Prior to trial, the People sought to introduce evidence of four allegations made byformer students of the defendant, based on events that occurred when he taught at aschool in the Bronx in 1996. Specifically, the People sought to introduce evidence ofallegations that the defendant (1) told one student to stand at his desk and state, "I'm apunk and fat," (2) told one of his female students to "kiss a boy for his birthday," (3) toldanother female student to "massage" a boy's shoulders, and (4) told another student to gohome, "sit in his house and play with himself." These allegations resulted in thetermination of the defendant's employment at the Bronx school. In a Sandovalruling (see People v Sandoval, 34 NY2d 371 [1974]), the trial court precludedquestioning into those prior allegations if the defendant testified, unless the defendantopened the door to such questioning.
Prior to the defendant taking the stand, defense counsel asked for clarification as towhether a particular question would open the door to cross-examination concerning the1996 allegations. Defense counsel wished to ask the defendant if he had ever beenaccused of having an "inappropriate sexual relationship" with a student prior to theinstant allegations. Following a discussion on this issue, the trial court indicated that thequestion would not open the door to cross-examination concerning the 1996 allegations.
During the defendant's direct testimony, defense counsel asked him, "other than thiscase have you ever been accused of acting inappropriately in a sexual way towards astudent of yours?" The defendant replied "no." Prior to the cross-examination of thedefendant, the People argued that the defense counsel opened the door tocross-examination concerning the 1996 allegations. The trial court agreed, and permittedinquiry into the 1996 allegations, finding that the question asked by defense counsel,"paint[ed] [the defendant] in a light that he has never had a problem with students." Thecourt maintained, however, that the People could not ask the defendant if hisemployment was terminated as a result of the allegations. On cross-examination, thedefendant was asked if he made the above-described statements. The defendant deniedmaking the statements, [*3]but acknowledged that he wasaccused of making the statements. The prosecutor then asked if the defendant recalledreceiving a letter on January 26, 1996, "from the principal of the Junior High School 145informing you—," but the court cut off the prosecutor's question, and instructedthe jury to disregard it.
The purpose of a Sandoval hearing is to provide the defendant with"definitive advance knowledge of the scope of cross-examination as to prior conduct towhich he will be subjected," so that the defendant can decide whether to take the witnessstand (People v Sandoval, 34 NY2d at 375). In the interest of fairness, a trialcourt's authority to change its Sandoval ruling is limited once the defendant hasdecided to testify in good faith reliance on that ruling (see People v Fardan, 82NY2d 638, 646 [1993]; People v Grant, 234 AD2d 475, 475 [1996]). "When adefendant testifies to facts that are in conflict with the precluded evidence, he opens thedoor on the issue in question, and he is properly subject to impeachment by theprosecution's use of the otherwise precluded evidence" (People v Grant, 234AD2d at 475-476; see People v Fardan, 82 NY2d at 646).
Here, the trial court's determination that the defendant opened the door tocross-examination concerning the 1996 allegations constituted error. Defense counselconfirmed with the court that he could ask the defendant if he was ever previouslyaccused of having an "inappropriate sexual relationship" with a student, without openingthe door to cross-examination concerning the 1996 allegations. The question actuallyasked by the defense counsel—whether the defendant had "ever been accused ofacting inappropriately in a sexual way towards a student"—was not sosubstantially different from the question approved by the court so as to open the door toan inquiry into the highly prejudicial 1996 allegations. Furthermore, the defendant'sresponse to the question posed by defense counsel was not misleading with respect to hisprior conduct, as his prior conduct merely involved allegations of statements made by thedefendant, not inappropriate sexual conduct (see People v Wright, 260 AD2d935, 937-938 [1999]; People v Grant, 234 AD2d at 476). Moreover, the recordreveals that defense counsel asked the question in good faith reliance on the court'sruling. Under these circumstances, it was error for the court to allow questioning into theirrelevant and highly prejudicial 1996 allegations (see People v Brown, 239AD2d 429, 430 [1997]).
The trial court also erred in granting the People's application to preclude defensecounsel from asking the complainant about statements she made, which indicated thatshe had sex with the defendant's brother. A woman's character or reputation for chastityis irrelevant to a charge that she was sexually abused (see People v Jovanovic,263 AD2d 182, 193 [1999]). Thus, the Rape Shield Law, codified in CPL 60.42,provides that "[e]vidence of a victim's sexual conduct shall not be admissible in aprosecution for an offense or an attempt to commit an offense defined in article onehundred thirty of the penal law [i.e., sex offenses]." CPL 60.42 also provides fivestatutory exceptions. The first four exceptions allow the admission into evidence of acomplainant's prior sexual conduct in narrowly defined factual circumstances, which areinapplicable here (see People v Williams, 81 NY2d 303, 311 [1993]). The fifthexception, however, "vest[s] discretion in the trial court" (id. at 311). Pursuant toCPL 60.42 (5), evidence of a victim's prior sexual conduct may be introduced upon adetermination by the court that such evidence is "relevant and admissible in the interestsof justice" (CPL 60.42 [5]; seePeople v Scott, 16 NY3d 589, 594 [2011]). The Court of Appeals hasrecognized that, "in the interests of justice," evidence of a complainant's sexual conductmay be admissible if it is relevant to a defense (People v Scott, 16 NY3d at 594).In contrast, such evidence must be precluded if it does not tend to establish a defense tothe crime, and will only harass the victim and possibly confuse the jurors (seeid.).
Here, according to an investigative report prepared by the complainant's school, thecomplainant made a statement to a friend allegedly acknowledging that she had sex withthe defendant and the defendant's brother, but the complainant later told the police thatshe had sex only with the defendant and not the defendant's brother. These statements arerelevant to the defense that the phone calls and text messages made to the complainantwere actually made by the defendant's brother, who was in possession of the defendant'scell phone. The defendant testified at trial that he had given his brother his cell phone,and that he never used his phone to call the complainant. Thus, the defendant did notseek to introduce the complainant's statements to demonstrate her "unchastity" and,therefore, impugn her character (see People v Jovanovic, 263 AD2d at 197).[*4]Rather, the statements are relevant to, and wouldsupport the defense that, the phone calls and text messages were made between thedefendant's brother and the complainant. Therefore, the complainant's statementsallegedly acknowledging that she had sex with the defendant's brother should have beenadmitted pursuant to CPL 60.42 (5), since they were relevant to a defense, and were notoffered for an improper purpose (see People v Jovanovic, 263 AD2d at 197).
Furthermore, the trial court improperly precluded the defendant from presentingcharacter witnesses who would have testified to the defendant's reputation for honesty(see People v Howie, 210 AD2d 255, 256 [1994]). The defendant took the standand essentially denied that he had sex with the complainant or engaged in inappropriatephone conversations with her. Thus, the defendant's credibility was squarely at issue.
As the evidence of the defendant's guilt of endangering the welfare of a child, ascharged in count six of the indictment, was less than overwhelming, these errors cannotbe deemed harmless (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).
In light of our determination, we need not reach the defendant's remainingcontention. Skelos, J.P., Hall, Roman and Cohen, JJ., concur.