| People v Ortiz |
| 2016 NY Slip Op 00593 [135 AD3d 649] |
| January 28, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Richard Ortiz, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Marisa K. Cabrera ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Ramandeep Singh of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered July 12,2013, convicting defendant, after a jury trial, of sexual abuse in the first degree andendangering the welfare of a child, and sentencing him, as a persistent felony offender, toan aggregate term of 18 years to life, unanimously reversed, on the law, and the matterremanded for a new trial.
The court erred when it permitted the People to introduce, under the prompt outcryexception to the hearsay rule, the fact that the 15-year old complainant sent a textmessage discussing the alleged sexual assault to her friends two or three months after thealleged assault occurred. A complaint is timely for purposes of the prompt outcryexception if made "at the first suitable opportunity," which is a "relative conceptdependent on the facts" (People v McDaniel, 81 NY2d 10, 17 [1993]).
While a significant delay in reporting does not necessarily preclude outcry evidence,especially where the victim is a child (see e.g. People v Stuckey, 50 AD3d 447 [1st Dept 2008],lv denied 11 NY3d 742 [2008]), when the complainant is a teenager (or older),"the concept of promptness necessarily suggests an immediacy not ordinarily presentwhen months go by" (People vRosario, 17 NY3d 501, 513 [2011]). With respect to teenagers and adults ratherthan young children, a reporting delay of several months may be justified if there were"legally sufficient circumstances" that would excuse the victim's delay, such as the victimbeing "under the control or threats of [the] defendant . . . or being amongstrangers and without others in whom [the victim] could confide" (People v Allen, 13 AD3d892, 896 [3d Dept 2004], lv denied 4 NY3d 883 [2005]).
Here, as in Allen, there is an absence of circumstances to bring this lengthydelay within the prompt outcry rule. While the evidence indicated that the complainantexperienced confusion, shock, embarrassment, and fear of not being believed, as well asconcern about her mother and grandmother's reactions, there is no evidence that she wasthreatened by defendant or was under his control. Although the outcry occurred afterdefendant was incarcerated on a parole violation, the complainant made the disclosure atleast a month after that circumstance occurred, and she did not testify that she delayedher disclosure based on a fear of retribution.
We also conclude that this prior consistent statement would not have been admissibleon [*2]a theory of rebutting a charge of recentfabrication. Furthermore, the erroneous admission of this evidence was not harmless,given the less than overwhelming evidence and the significant probability that the priorconsistent statement affected the verdict by bolstering the veracity of the victim.
In light of this determination, we find it unnecessary to reach any other issues.Concur—Tom, J.P., Sweeny, Gische and Kapnick, JJ.