| People v Garrow |
| 2015 NY Slip Op 02298 [126 AD3d 1362] |
| March 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRobert Garrow, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered June 2, 2011. The judgment convicted defendant, upon a jury verdict, ofpredatory sexual assault against a child, rape in the first degree (two counts) andendangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted on counts one through four of the supersedingindictment.
Memorandum: Defendant appeals from a judgment convicting him, following a jurytrial, of predatory sexual assault against a child (Penal Law § 130.96), twocounts of rape in the first degree (§ 130.35 [3], [4]) and one count ofendangering the welfare of a child (§ 260.10 [1]). We agree with defendantthat County Court committed reversible error by violating the core requirements of CPL310.30 in failing to advise counsel on the record of the contents of a substantive jury notebefore accepting a verdict (seePeople v Silva, 24 NY3d 294, 299-300 [2014]; People v O'Rama, 78NY2d 270, 277-278 [1991]). Defendant's contention does not require preservationinasmuch as it involves a mode of proceedings error (see Silva, 24 NY3d at299-300; People v Walston,23 NY3d 986, 989 [2014]). We therefore reverse the judgment and grant a new trialon counts one through four of the superseding indictment.
We reject defendant's further contention that the court erred in permitting thefour-year-old victim's mother to testify with respect to the substance of the victim'sdisclosure under the prompt outcry exception to the hearsay rule (see People vMcDaniel, 81 NY2d 10, 16-17 [1993]). The testimony revealed the complaint, i.e.,that defendant hurt the victim's vagina with his penis, without "its accompanying details"(id. at 17; see People vStalter, 77 AD3d 776, 777 [2010], lv denied 15 NY3d 956 [2010]).
Defendant failed to preserve for our review his contention that the court's refusal topermit evidence regarding the victim's disclosure of sexual abuse by another individualto her mother, defendant and a police witness, violated his constitutional rights to presenta defense and to cross-examine witnesses (see People v Simmons, 106 AD3d 1115, 1116 [2013],lv denied 22 NY3d 1043 [2013]), and we decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]). Inasmuch as we are granting a new trial, however, we note that, to the extent thatthe court determined that evidence of a prior victimization was not admissible because itis prohibited by CPL 60.42, i.e., the rape shield law, we conclude that the court failed toexercise its discretion to determine whether, under the circumstances presented here, theevidence may "be relevant and admissible in the interests of justice" (CPL 60.42 [5]; cf. People v Halter, 19 NY3d1046, 1049-1050 [2012]; see generally People v Williams, 81 NY2d 303,311-314 [1993]).
Defendant also failed to preserve for our review his contention that he was denied afair trial by prosecutorial misconduct during cross-examination and summation (seeCPL 470.05 [2]), [*2]and we decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). We nevertheless note our strong disapproval of the prosecutor'stactics during summation in appealing to the sympathy of the jury by stating, inter alia,that it should "tell [the victim] that her suffering has not been in vain, to tell her thatjustice is coming"; in denigrating both the defense strategy and the defense attorneypersonally; and in mischaracterizing the DNA evidence, stating that it "matched[defendant]."
In light of our determination to reverse the judgment and grant a new trial, we neednot address defendant's remaining contentions. Present—Scudder, P.J., Centra,Peradotto, Lindley and Whalen, JJ.