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CPL 60.42

A New York Sex Crimes Lawyer said that, the defendants were indicted for the crimes of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree and assault in the second degree. Although the alleged crimes occurred on April 4, 1975, the trial did not commence until October 21, 1975. The trial court determined that the provisions of CPL 60.42 were applicable to the trial of this case.

A New York Criminal Lawyer said that, pursuant to CPL 60.42, the defendants made an offer of proof concerning the complaint’s prior sexual conduct. After a hearing and a review of the various exhibits submitted by defendants, the trial court ruled that subdivisions 1 through 4 were not applicable and that the evidence offered was not “relevant and admissible in the interests of justice” under subdivision 5. Evidence of the complainant’s prior sexual conduct was therefore barred at the trial. Defendants contend that application of CPL 60.42 violated section 10 of article I of the United States Constitution, which prohibits the Legislature from passing an ex post facto law.

The issue in this case is whether the trial court erred in determining that the provisions of CPL 60.42 were applicable to the trial of this case.

CPL 60.42 provides as follows: ” § 60.42 Rules of evidence; admissibility of evidence of victim’s sexual conduct in sex offense cases Evidence of a victim’s sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit a criminal offense defined in article one hundred thirty of the penal law unless such evidence: 1. proves or tends to prove specific instances of the victim’s prior sexual conduct with the accused; or 2. proves or tends to prove that the victim has been convicted of an offense under section 230.00 of the penal law within three years prior to the sex crime offense which is the subject of the prosecution; or 3. rebuts evidence introduced by the people of the victim’s failure to engage in sexual intercourse, deviate sexual intercourse or sexual contact during a given period of time; or 4. rebuts evidence introduced by the people which proves or tends to prove that the accused is the cause of pregnancy or disease of the victim, or the source of semen found in the victim; or 5. is determined by the court after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice.”

Defendants assert that CPL 60.42 permits a trial court to prohibit the admission of relevant evidence in order to protect the privacy of a complaining witness. They contend that this prohibition violates their right to a fair trial under the Sixth and Fourteenth Amendments and that CPL 60.42 is therefore unconstitutional.

CPL 60.42 represents a legislative determination that evidence of a complainant’s past sex life “seldom elicits testimony relevant to the issues of the victim’s consent on credibility, but serves only to harass the alleged victim and confuse the jurors. Focusing upon the immaterial issue of a victim’s chastity tends to demean the witness, discourages the prosecution of meritorious cases, and leads to acquittals of guilty defendants”. CPL 60.42 codifies, in the trial of sex crime offenses, what has been the prevailing view in the trial of all other offenses, i. e., that “there is a duty to protect him from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him”.

The exclusion of evidence of a complainant’s prior sexual conduct has been upheld in other jurisdictions upon the very grounds relied upon by the Legislature in enacting CPL 60.42, to wit, that such evidence is not relevant and is highly prejudicial. CPL 60.42 serves the salutary purpose of restricting the unfair and irrelevant cross-examination of the victims of sex crimes. By including subdivision 5 within the statute, the Legislature has, however, recognized that there may be exceptions to this new rule and that there may indeed be times when a victim’s sexual conduct is highly relevant and that evidence of such conduct should therefore be admissible. The exception, therefore, affords a defendant the opportunity to demonstrate that the victim’s sexual conduct is relevant and to subsequently confront the victim with such evidence.

In this case, defendant is statutorily determined to be a sex offender in New York, so no comparison of the statutes is required. That is because the provision that applies to his conviction is section 168-a (2) (d) (ii), not section 168-a (1) (d) (i). The applicable provision defines the crime for which the criminal defendant was convicted as a sex offense because he was convicted of a felony in Vermont for which he is required to register as a sex offender in Vermont. As the statute clearly dictates that this defendant is a sex offender, it also specifically dictates that it is the Board who has the power to determine whether he must register. Because the court does not have jurisdiction to review the Board’s determination under these circumstances, the criminal defendant’s motion to dismiss on this ground is denied.

Defendant’s motion to dismiss on constitutional grounds is likewise denied. Defendant contends that the applicable SORA provision which requires him to register as a sex crimes offender after he established residence in New York violates the Equal Protection Clause because it treats out-of-state and New York residents differently.

The applicable provision does not violate the Equal Protection Clause. States have a legitimate interest in requiring offenders who commit registerable offenses in other jurisdictions to register in their new state of residence. If provisions like Correction Law § 168-a (2) (d) (ii) did not exist, an offender could avoid sex offender registration requirements simply by moving his state of residence, thereby frustrating the purpose behind sex offender registration laws.

In any event, the applicable SORA provision does not discriminate between out-of-state and New York residents. The initial question, prior to determining which type of constitutional analysis applies, is whether, under otherwise identical circumstances, the SORA would treat a Vermont resident who establishes residence in New York differently than a New York resident. Contrary to defendant’s argument, the analysis is therefore not whether a Vermont resident who commits a crime in Vermont and then establishes residence in New York would be treated differently than a New York resident who commits that same crime in New York. Rather, it is whether a Vermont resident who commits a crime in Vermont and then establishes residence in New York would be treated differently than a New York resident who commits that same crime in Vermont. The answer is that the Vermont resident and New York resident would be treated no differently under the SORA. Correction Law § 168-a (2) (d) (ii) defines a sex offender as a person who is convicted of a “felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred.” That provision is therefore clear that if a New York resident travels to Vermont where he is convicted of a felony for which he is required to register in Vermont, the SORA defines him as a sex offender who must register in New York. Hence, a Vermont resident who moves to New York after he is convicted of a registerable felony in Vermont is treated the same as a New York resident who is convicted of a registerable felony in Vermont. As defendant would have been required to register in New York had he been a continuing resident of New York when he was convicted of the Vermont felony, he was not discriminated against based upon his state of residency. Nor does the provision in any way impede his right to travel. His motion to dismiss on equal protection grounds is therefore denied.

For the same reasons, defendant’s motion to dismiss under the Privileges and Immunities Clause is denied.

Accordingly, the motion is denied in its entirety.

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.

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.

If your constitutional rights has been violated in a criminal case, seek the assistance of a New York Sex Crime Attorney and New York Criminal Attorney at Stephen Bilkis and Associates. Call us now.

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