Although we find that CPL 60.42 is constitutional, we are constrained to reverse the judgments because the evidence offered by criminal defendants, but excluded by the trial court, was of substantial probative value and was not offered primarily to demean or harass the victim. Such evidence directly involved not only the complainant's credibility and her mental and emotional condition, but, to a marked degree, her ability to perceive and recall past events. The relevance of the evidence therefore clearly outweighed its possible prejudicial implications. The basic essence of a fair trial is that a defendant be permitted "to probe into the influence of possible bias in the testimony of a crucial identification witness". If the defense be not afforded the full and proper right of confrontation, it is difficult indeed, if not impossible, to determine the truth; and a trial, as we all so often say, is but a search for the truth.
Pursuant to the exception set forth in subdivision 5 of CPL 60.42, the defendants made an offer of proof at the outset of the trial. The offer proposed the admission of evidence of: three similar false rape complaints previously made by the complainant; certain records of South Oaks Hospital prepared in the regular course of business while complainant was a patient at that hospital from April 11, 1972 to May 22, 1972; statements by three males, two 18 years of age and one 31 years of age, that, inter alia, in sexual situations with complainant she had refused to let them touch her breasts; a statement by an 18-year-old male that he had seen complainant's father brutally beat her with his naked fists; a photograph in "Mixer" magazine allegedly of complainant, which accompanied a criminal solicitation for women to participate in multiple and unusual sorts of sexual activity; and the minutes of a preliminary hearing held on May 12, 1975.
The trial court held a brief hearing out of the presence of the jury and, at the request of defense counsel, who were hesitant to open their files to the prosecution, made an in camera examination of the proffered documentation and concluded that such evidence was totally inadmissible. At the time this determination was made the trial court was, of course, unaware of the theory of the defense and could not have had any knowledge of the many inconsistencies which would subsequently surface in the complainant's testimony. The conclusion is therefore valid that the trial court's ruling at that early stage was eminently fair and proper. However, as the trial progressed and both the theory of the defense and the complainant's conflicting versions of the event were revealed in the glare of searching cross-examination, we conclude, fortified as we are by the perfect vision of hindsight, that the trial court should have reconsidered and reversed its earlier ruling.
It was partially revealed on cross-examination, and it is documented by the transcript, that complainant lied when she testified at a preliminary hearing on May 12, 1975. She there swore under oath that she had been a virgin prior to the alleged rape and that she had never been treated or institutionalized for a mental illness.
As the defense brought these inconsistencies between the complainant's trial testimony and her previous statements to light the theory of the defense became apparent. The defendants contended that the complainant either instigated or consented to any sexual activity which occurred. They alleged that the rape complaint was the result of the humiliation she had suffered and the resultant anger and fury that possessed her when water balloons, purposely placed by the complainant in her bra, fell and burst upon the floor to the taunting, scornful and infuriating laughter of the defendants. As incredible as this defense may appear, the evidence offered by defendants, but not admitted by the trial court, tends to support defendants' position at least to the extent that the issue should have been fully explored and then submitted to the jury.
Although the point is moot in the light of our reversal of the convictions, it should be noted that there was no inconsistency in the verdict.
The defendants were acquitted of the crimes of rape and sodomy and convicted of the crimes of sexual abuse and assault. Based upon the evidence at the trial, the guilty verdict was supported by the record and there is no question that an acquittal on rape and sodomy counts does not preclude a conviction for sex abuse. Although complainant's testimony, standing alone, supported a conviction on all three counts, the hospital records, which revealed the absence of semen and no damage to complainant's anal area, provide a rationale for the verdict. The lack of medical corroboration of the crimes of rape and sodomy and the testimony that the complainant was drugged during the events sufficiently explain the verdict.
Defendants also argue that the count charging sex abuse in the first degree must be dismissed, because the indictment, without further elaboration, merely sets forth the statutory definition of the crime. This contention has been urged for the first time approximately eight months after oral argument of this appeal and just prior to the rendition of our determination. We therefore refrain from passing upon this contention, without prejudice to the raising of this point by any of the defendants upon the remand to Criminal Term.
There is one additional point raised on appeal which merits discussion.
At the sentencing the court took into account the defendants' refusal to discuss the case with the Probation Department. The court was informed that defendants had refused to discuss the matter upon advice of counsel since, if successful on appeal, such statements might be admissible at a retrial. The sentencing court stated: "I don't accept that because any statement your client may make to probation in the event that you were successful on an appeal would not, under any circumstances, be admissible on a retrial of this indictment." Although we do not consider an indeterminate sentence of five years to be necessarily excessive, the importance that the sentencing court attached to defendants' refusal to speak with the Probation Department is demonstrated by the court's putting over of the sentencing of defendant Buckley after he indicated a willingness to speak with that department. The test for determining the voluntariness, and therefore admissibility, of inculpatory statements is whether such statements were " 'extracted by any sort of threats or violence' ". Under this test, any statements made to the Probation Department would clearly be inadmissible at the retrial on the People's direct case because there is certainly an "implied promise" that candor with the Probation Department may result in a recommendation of leniency. It is unclear, under the rule enunciated that such statements could be admitted into evidence for impeachment purposes. Albeit cautious, it was proper for the defendants, upon advice of counsel, to refuse to speak with the Probation Department.
The two judgments of the Supreme Court, Queens County, rendered December 9, 1975 and judgment of the same court, rendered January 6, 1976, reversed, on the law, and new trial ordered. The findings of fact are affirmed.
Accordingly, the court held that the judgments appealed from are reversed, on the law, and a new trial is ordered.