| People v Gaylord |
| 2021 NY Slip Op 03080 [194 AD3d 1189] |
| May 13, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ryan J. Gaylord, Appellant. |
Mitchell S. Kessler, Cohoes, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Broome County (Dooley, J.),rendered August 21, 2018, upon a verdict convicting defendant of the crime of predatory sexualassault against a child.
In November 2017, defendant was charged by indictment with two counts of predatorysexual assault against a child stemming from incidents that took place between January 2017 andJuly 2017 where defendant engaged in multiple acts of sexual conduct with the minor victim,including sexual intercourse, oral sexual conduct and/or anal sexual conduct. After a jury trial,defendant was convicted of the first count of predatory sexual assault against a child and wasacquitted of the second count and was sentenced to a prison term of 18 years to life. Defendantappeals.
Defendant contends that County Court's Rape Shield Law ruling deprived him of evidence"essential to his defense" since the evidence "might" have established the victim's motive tofabricate and explained her age-inappropriate knowledge. The Rape Shield Law specifically"prohibits the introduction of 'evidence of a victim's sexual conduct' in a prosecution for a sexoffense under Penal Law article 130, unless one of five statutory exceptions applies" (People v Simonetta, 94 AD3d1242, 1245 [2012], lv denied 19 NY3d 1029 [2012], quoting CPL 60.42). Asrelevant here, the fifth exception vests discretion in the trial court to allow "evidence of priorsexual conduct to be admitted when such evidence 'is determined by the court after an offer ofproof by the accused outside the hearing of the jury, or such hearing as the court may require, anda statement by the court of its findings of fact essential to its determination, to be relevant andadmissible in the interests of justice' " (People v Williams, 81 NY2d 303, 311[1993], quoting CPL 60.42 [5]).
After a Huntley hearing, County Court determined that a recorded interview ofdefendant by a detective was admissible up until the point in the interview where defendantrequested an attorney. Subsequently, the People filed an application seeking to have certainportions of the video redacted because defendant mentions to the detective that the victim wasallegedly involved in prior incidents where she had sex with her cousin and was inappropriatelytouched by another man. The People's position was that these portions of the video were notadmissible under the Rape Shield Law. County Court granted the People's application, holdingthat defendant failed to demonstrate that these portions of the interview should be admitted underan exception to the Rape Shield Law, and that any connection between the allegations concerningthe prior incidents and the victim's motive to fabricate or her knowledge of sexual activity andthe male anatomy is "speculative and so tenuous as to be irrelevant." County Court alsoprecluded cross-examination of the victim regarding her alleged disclosures to her therapistbecause defendant presented no evidence to establish [*2]aconnection between the victim's alleged prior sexual incidents and her apparent motive tofabricate the current allegations.
Based on the foregoing, County Court did not deprive defendant from presenting a defensenor did it deprive defendant of evidence essential to his defense. The evidence defendant soughtto introduce regarding the victim's prior sexual conduct is exactly the type of evidence prohibitedby the Rape Shield Law (see generally People v Williams, 81 NY2d at 312). Althoughdefendant argues that such evidence might have discredited the victim—which he argueswould fall in the interests of justice exception—County Court did not abuse its discretionin limiting exploration of the victim's alleged prior sexual experiences, as such information is notsupported by any evidence other than through defendant's testimony, and such irrelevanttestimony would likely have confused the jury (see CPL 60.42; People v Youngs, 175 AD3d 1604,1611 [2019]; People vSerrano-Gonzalez, 146 AD3d 1013, 1016 [2017], lv denied 29 NY3d 952[2017]). Defendant's related contention regarding the inadequacy of County Court's limitinginstruction given after the prosecutor referenced the victim's prior "[l]ife experiences" during thesummation is unpreserved inasmuch as defendant requested the limiting instruction and agreed tothe language crafted by the court (seePeople v Delbrey, 179 AD3d 1292, 1296 [2020], lv denied 35 NY3d 969 [2020];People v Irby, 140 AD3d 1319,1323 [2016], lv denied 28 NY3d 931 [2016]).
Defendant also asserts that County Court abused its discretion and violated defendant's rightto present a defense in precluding trial testimony from the detective who interviewed defendantin relation to the videotaped interview with defendant. "Trial courts are accorded wide discretionin making evidentiary rulings and, absent an abuse of discretion, those rulings should not bedisturbed on appeal" (People v Carroll, 95 NY2d 375, 385 [2000] [citation omitted]).However, "[a] court's discretion in evidentiary rulings is circumscribed by the rules of evidenceand the defendant's constitutional right to present a defense" (id. at 385; accord People v Hall, 160 AD3d210, 214 [2018]). Before jury selection, the parties engaged in a lengthy discussion with thecourt regarding the admissibility of evidence related to the detective's videotaped interview withdefendant. The People indicated that they were not using it in their direct case and requested thatdefendant be precluded from pursuing this line of questioning.[FN1] After a lengthy discussion and arguments, priorto giving preliminary instructions to the jury (and the parties' opening statements), the court ruledthat there were not to be any references at trial to the videotaped interview of defendant despitedefendant's argument that his entire case rests on the lack of investigation by the police. Thecourt based this ruling on the fact that the statements made to the detective during [*3]the interview are hearsay and there is no relevant purpose tointroduce them. Significantly, the court informed defendant that, at any time, he could request anoffer of proof outside the presence of the jury if there was a specific reason that the video of theinterview should be brought up to the jury.
County Court did not deprive defendant of a fair trial or the right to present a defense when itprecluded questioning of the detective and references to the videotaped interview at trial. First,we disagree with defendant that the detective opened the door to this precluded line ofquestioning when he made one general reference to having conducted interviews of severalpeople, including defendant (compare People v Carroll, 95 NY2d at 385-386; People v Diaz, 20 NY3d 569, 576[2013]). The People did not pursue anything else related to the interview of defendant nor wasthere anything elicited from the detective in this regard about the substance of his interview withdefendant. The court, on its own, made sure to prevent any further mention of the interviewduring cross-examination. Second, contrary to defendant's assertion, County Court was notassuming an advocacy role typically reserved for counsel when, during defendant'scross-examination of the detective, the court intervened and a sidebar was held so that the courtcould explain once again that the prior ruling precluded references to the videotaped interview.The court also specifically explained to the detective that there were not to be any references tothe interview. We do not find that, by taking this action, the court abused its discretion andassumed the "advocacy role traditionally reserved for counsel" (People v Kachadourian, 184 AD3d1021, 1028 [2020] [internal quotation marks and citations omitted], lv denied 35NY3d 1113 [2020]). Rather, the court sought to "clarify or enlighten an issue" to ensure that itsprior ruling was not violated (People vByrd, 152 AD3d 984, 988 [2017] [internal quotation marks and citation omitted], lvdenied 34 NY3d 979 [2019]; see generally People v Arnold, 98 NY2d 63, 67-68[2002]).
Finally, we do not find that County Court abused its discretion in precluding defendant fromquestioning the detective about the recorded interview (see People v DeFreitas, 116 AD3d 1078, 1082 [2014], lvdenied 24 NY3d 960 [2014]; compare People v Carroll, 95 NY2d at 385). Althoughdefendant claims that he was precluded from his right to present a defense, our review of thedetective's testimony establishes that defendant brought out many weaknesses in theinvestigation, which defense counsel aptly argued about during his summation. Moreover,despite being informed by the court that defendant could request an offer of proof outside of thehearing of the jury if he wanted to pursue a particular line of questioning of the detective,defendant never did so.
Defendant also argues that County Court violated his right to a fair trial when itadmitted—over his [*4]objection—testimony fromthe victim that described an alleged uncharged bad act, without prior disclosure by the People, asthe court failed to weigh the testimony's probative value against its potential for unfair prejudiceor issue a limiting instruction. It is well settled that "[t]he Molineux rule requires thatevidence of a defendant's prior bad acts or crimes be excluded unless it is probative of a materialissue other than criminal propensity and its probative value outweighs the risk of prejudice to thedefendant" (People v Williams, 156AD3d 1224, 1229 [2017] [internal quotation marks and citation omitted], lv denied31 NY3d 1018 [2018]; see People vKnox, 167 AD3d 1324, 1325-1326 [2018], lv denied 33 NY3d 950 [2019]).Such evidence, however, may be admitted if it falls "within the recognized Molineuxexceptions—motive, intent, absence of mistake, common plan or scheme andidentity—or where such proof is inextricably interwoven with the charged crimes,provides necessary background or completes a witness's narrative" (People v Anthony, 152 AD3d1048, 1051 [2017] [internal quotation marks and citations omitted], lv denied 30NY3d 978 [2017]; accord People vYoung, 190 AD3d 1087, 1092 [2021]). When the People seek to admit evidence of adefendant's prior bad acts or crimes in their direct case, "they must make a Ventimigliashowing before presenting the proof in front of a jury. In a Ventimiglia analysis, the trialcourt addresses first whether the evidence is relevant to a pertinent issue (a question of lawtypically involving Molineux exceptions) and then makes the discretionary determinationwhether the probative value outweighs the risk for real prejudice" (People v Moore, 59 AD3d 809,811-812 [2009] [citations omitted]; see People v Till, 87 NY2d 835, 836 [1995]).
At trial, during the People's direct case, the victim testified that every time that she had sexwith defendant they would use a condom because defendant did not want her to get pregnant. Shealso testified that defendant had indicated to her that if she got pregnant, she "needed to findsomeone else to blame." There came a time in May 2017 that both the victim and defendantthought she might have been pregnant because her period was one week late. The victim statedthat defendant appeared to be nervous about it and punched her in the stomach because "if therewas a baby, [defendant] would kill it." At this point, defendant objected, arguing that this"incredibly horrible conduct" was not made a part of any Molineux application. CountyCourt overruled the objection without giving a reason, and a limiting instruction was neitherrequested nor provided.
We agree with defendant that County Court erred in allowing this testimony withoutdefendant having been put on notice and afforded a Ventimiglia hearing to determine itsadmissibility (see People v Moore, 59 AD3d at 812; People v Holloway, 185AD2d 646, 646-647 [1992], lv denied 80 NY2d 1027 [1992]). [*5]However, given the overwhelming proof of defendant's guilt,including the victim's detailed testimony that was corroborated by, among other things, hermother's testimony and physical evidence, we find such error to be harmless as there was nosignificant probability that the jury would have acquitted defendant but for this testimony (seePeople v Crimmins, 36 NY2d 230, 242 [1975]; People v Saunders, 176 AD3d 1384, 1391 [2019], lv denied35 NY3d 973 [2020]; People v Holloway, 185 AD2d at 647; see also People vHerring, 227 AD2d 658, 660 [1996], lv denied 88 NY2d 986 [1996]; People vSherman, 156 AD2d 889, 891 [1989], lv denied 75 NY2d 970 [1990]).[FN2] Furthermore, this evidence wasproper inasmuch as it was material and relevant as it is "inextricably interwoven with the chargedcrimes, provides necessary background [and] completes [the victim's] narrative" (People vAnthony, 152 AD3d at 1051; see People v Young, 190 AD3d at 1092-1093).Additionally, "the probative value of the evidence outweighs its potential for prejudice"(People v Ventimiglia, 52 NY2d 350, 359 [1981]; see People v Young, 190AD3d at 1093). Lastly, although defendant argues that County Court erred in not giving alimiting instruction as to this testimony, this argument is unpreserved as a limiting instructionwas not requested (see People vFlower, 173 AD3d 1449, 1455 [2019], lv denied 34 NY3d 931 [2019]).
Egan Jr., J.P., Lynch, Aarons and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:We note that defendantpreviously sought to have the entire recording of the police interview suppressed.
Footnote 2:To the extent that defendantargues that the error cannot be harmless given that the jury was deadlocked, requiring anAllen charge, and that defendant was acquitted of the second count of the indictment, weare unpersuaded. Indeed, in stark contrast to the first count, a review of the record reveals that theproof of the second count, which was based on one alleged instance of rape in the first degree ona particular date, was tenuous. However, defendant was acquitted of this count; thus, indetermining whether the error was harmless, we need only examine the quantum of the proof asto the first count of which he was convicted.