| People v Bottomley |
| 2017 NY Slip Op 00047 [146 AD3d 1026] |
| January 5, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Gary Bottomley, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel),for respondent.
Devine, J. Appeal from a judgment of the Supreme Court (Milano, J.), renderedNovember 14, 2014 in Schenectady County, upon a verdict convicting defendant of thecrimes of sexual abuse in the first degree, criminal sexual act in the second degree, sexualabuse in the second degree, rape in the second degree and endangering the welfare of achild.
In August 2013, authorities learned of allegations that defendant (born in 1970) hadsexually abused the victim (born in 1999). State Police Investigator Steven Koveleskiefirst interviewed the victim, her mother and her sister, learning more about the allegationsand retrieving pertinent text messages from the victim's cellular phone. Koveleskie thenconducted recorded interviews with defendant at his residence as well as at State Policebarracks, and inculpatory oral and written statements were the result.
Defendant was subsequently charged in an indictment with offenses occurring fromJune 2012 to May 2013, when the victim was 12 or 13 years of age. His effort tosuppress the oral and written statements he made to Koveleskie was unsuccessful.Supreme Court then, in response to competing applications by the People and defendant,precluded defendant from offering at trial evidence of the victim's prior sexual conduct(see CPL 60.42). Following a jury trial, defendant was convicted of sexual abusein the first degree, criminal sexual act in the second degree, sexual abuse in the seconddegree, rape in the second degree and endangering the welfare of a child. Supreme Courtimposed an aggregate prison sentence of 13
[*2] Defendant focuses his attention upon severalevidentiary rulings by Supreme Court and, at the outset, asserts that his application for amistrial should have been granted due to the belated disclosure of evidence by thePeople. In that regard, Koveleskie testified at the suppression hearing that he arrived atdefendant's residence around 4:00 p.m. or 4:30 p.m., and he recorded about 50 minutesof their interactions there. However, defendant and Koveleskie did not arrive at StatePolice barracks until after 6:30 p.m., seemingly leaving an undocumented hour or morein which the two men were alone. Defense counsel, over the People's objection, pointedout this gap in his opening statement at trial. Then, prior to the commencement oftestimony, the People produced proof that no gap existed in the form of a State Policeradio log sheet showing that Koveleskie arrived at defendant's residence at 5:44 p.m.
Defendant now endeavors to argue that the radio log was Rosario materialbut, inasmuch as trial counsel did not move for a mistrial on that ground and concededthat the radio log was "not Rosario," that issue is not preserved for our review (see People v Rizzo, 142 AD3d1187, 1188 [2016]; People v Hentley, 155 AD2d 392, 393-394 [1989], lvdenied 75 NY2d 919 [1990]). In any event, the People promptly disclosed the radiolog after learning of its existence, the reference to the time gap in defendant's openingstatement was brief and defense counsel had the opportunity to cross-examineKoveleskie regarding the inaccuracies in his suppression hearing testimony revealed bythe radio log. Supreme Court further invited defendant to request an ameliorativeinstruction to the jury or other corrective action. Under these circumstances, defendantdid not demonstrate prejudice substantial enough to warrant a mistrial (see CPL280.10 [1]; People v Watson, 281 AD2d 691, 695-696 [2001], lv denied96 NY2d 925 [2001]; People v Benito, 256 AD2d 221, 221 [1998], lvdenied 93 NY2d 850 [1999], cert denied 528 US 810 [1999]).
Defendant next contends that Supreme Court erred in precluding the use of evidenceof the victim's prior sexual history. CPL 60.42 prohibits the introduction of suchevidence unless one or more statutory exemptions apply, including, as is relevant here,where it "is determined by the court . . . to be relevant and admissible in theinterests of justice" (CPL 60.42 [5]; see People v Scott, 16 NY3d 589, 594 [2011]; People v Simonetta, 94 AD3d1242, 1245 [2012], lv denied 19 NY3d 1029 [2012]). Defendant sought tointroduce proof that the victim had been in a sexual relationship with a 20-year-old man,arguing that his vocal opposition to the relationship motivated the victim to falselyaccuse defendant of abuse. Supreme Court permitted defendant to attack the victim'scredibility with proof that she had dated an adult against defendant's wishes, however,and only barred defendant from directly referencing her sexual activity. Defendantaccordingly had "ample opportunity to develop evidence to support his contention that"the victim had a motive "to accuse him falsely of the charged crimes," and SupremeCourt did not abuse its discretion by precluding proof of the victim's sex life (People v Russillo, 27 AD3d493, 493 [2006]; see Peoplev Weberman, 134 AD3d 862, 863 [2015], lv denied 27 NY3d 1156[2016]; People v Simmons,106 AD3d 1115, 1116 [2013], lv denied 22 NY3d 1043 [2013]).
Defendant goes on to argue that Supreme Court erred in preventing him fromtestifying as to the exact words that he claimed were used by Koveleskie to induce him toconfess. Supreme Court incorrectly found that the statements were hearsay despitehaving been "offered, not for their truth, but for the fact that they were uttered"(People v Mertens, 97 AD2d 595, 596 [1983]; see People v Guy, 93 AD3d877, 880 [2012], lv denied 19 NY3d 961 [2012]). Defendant wasnevertheless permitted to testify as to the substance of "the alleged threats,misrepresentations and promises" made by Koveleskie and, as such, any error inexcluding the precise wording of those inducements was harmless (People vMertens, 97 AD2d at 596; see People v Rodriguez, 110 AD3d 456, 458 [2013], lvdenied 23 NY3d 1066 [2014]; People v Saxton, 75 AD3d 755, 759 [2010], lvdenied 15 NY3d 924 [2010]).
[*3] Defendant next takes issue with Supreme Court's refusal to admit into evidence severalletters purportedly authored by the victim, and, contrary to his present contention, thoseletters were offered for the truth of the assertions contained therein and were hearsay (see People v Meadow, 140AD3d 1596, 1598-1600 [2016], lv denied 28 NY3d 933 [2016]). Defendantintended to impeach the victim's testimony with prior inconsistent statements in theletters, and, to lay the foundation for their use, defense counsel "must first inform thewitness of the circumstances surrounding the making of the statement, and inquire of him[or her] whether he [or she] in fact made it" (People v Wise, 46 NY2d 321, 326[1978]; see People vMaxam, 135 AD3d 1160, 1161 [2016], lv denied 27 NY3d 1135[2016]). The foundation was not laid, with defense counsel expressly declining toquestion the victim about the letters and instead attempting to introduce them through thetestimony of her mother (seePeople v Brabham, 126 AD3d 1040, 1043 [2015], lv denied 25 NY3d1160 [2015]; People vRodriguez, 48 AD3d 312, 312 [2008], lv denied 10 NY3d 939 [2008]).Therefore, Supreme Court was right to refuse to admit the letters into evidence.
Lastly, after considering the nature of the crimes for which defendant was convicted,we discern neither an abuse of discretion nor extraordinary circumstances that wouldwarrant a reduction of the sentence in the interest of justice (see People v Jabaut, 111 AD3d1140, 1148 [2013], lv denied 22 NY3d 1139 [2014]).
Peters, P.J., Garry, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.