| People v Caban |
| 2015 NY Slip Op 01959 [126 AD3d 808] |
| March 11, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ernesto Caban, Appellant. |
Michael F. Dailey, Bronx, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco,Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Cacace, J.), rendered September 6, 2011, convicting him of a course of sexual conductagainst a child in the first degree and endangering the welfare of a child, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
On appeal, the defendant contends that the trial court improperly admitted "promptoutcry" testimony, and that its Sandoval ruling (see People v Sandoval, 34NY2d 371 [1974]) deprived him of a fair trial. We disagree.
Evidence that a sexual assault victim promptly complained about the incident isadmissible to corroborate the allegation that an assault took place (see People vRice, 75 NY2d 929, 931 [1990]; People v Deitsch, 237 NY 300, 304 [1923])."An outcry . . . is prompt if made 'at the first suitable opportunity'(People v O'Sullivan, 104 NY 481, 486 [1887]), and 'is a relative conceptdependent on the facts' (People v McDaniel, 81 NY2d 10, 17 [1993]" (People v Shelton, 1 NY3d614, 615 [2004]). "There can be no iron rule on the subject. The law expects andrequires that it should be prompt, but there is and can be no particular time specified"(Higgins v People, 58 NY 377, 379 [1874]). "[W]hat might qualify as prompt inone case might not in another" (People v McDaniel, 81 NY2d at 17).
Here, the trial court permitted testimony concerning the victim's first "outcry" to afriend which occurred approximately one year after the abuse had ended, as well astestimony that she informed her mother about the defendant's conduct approximatelythree years after the last alleged incident. Under all of the circumstances of this case,including the victim's young age, and the fact that she lived with the defendant during therelevant period, the trial court properly admitted evidence of the victim's outcry to herfriend (see People v McDaniel, 81 NY2d at 16; People v Shelton, 1 NY3d614 [2004]; People vRosario, 100 AD3d 660, 661 [2012]; People v Lapage, 57 AD3d 1233 [2008]; People v Stuckey, 50 AD3d447, 448 [2008]; People vColeman, 37 AD3d 846 [2007]; People v Aguirre, 262 AD2d 175[1999]). Although the testimony regarding the victim's disclosure to her mother, threeyears after the events in question, cannot be considered "prompt outcry" and was, thus,inadmissible, such error was harmless (see People v Pruitt, 99 AD3d 413, 413 [2012]). Theevidence of the defendant's guilt [*2]was overwhelming,and there is no significant probability that, absent the error, the defendant would havebeen acquitted (see People v Crimmins, 36 NY2d 230, 242 [1975]; People v Cross, 116 AD3d708, 709 [2014]; People vLeon, 98 AD3d 1065, 1065 [2012]; People v Sweeney, 92 AD3d 810, 811 [2012]). In addition,the court gave a proper "prompt outcry" instruction to the jury (see People v Green, 108 AD3d782, 785 [2013]; People vBernardez, 85 AD3d 936, 938 [2011]).
Contrary to the defendant's contention, the trial court's Sandoval ruling was aprovident exercise of its discretion, and the defendant was not deprived of a fair trial(see People v Hayes, 97 NY2d 203, 207-208 [2002]; People v Sandoval,34 NY2d 371 [1974]; People vUmoja, 121 AD3d 920 [2014]; People v Smith, 63 AD3d 1301, 1303-1304 [2009]; People v McLaurin, 33 AD3d819, 820 [2006]). Balkin, J.P., Dickerson, Sgroi and Cohen, JJ., concur.