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CPL 60.42


The defendants were indicted for the sex crimes of rape in the first degree, sodomy in the first degree, sex abuse in the first degree and assault in the second degree. Although the alleged sex crimes occurred on April 4, 1975, the trial did not commence until October 21, 1975. The trial court determined that the provisions of Criminal Procedure Law (CPL) were applicable to the trial of this case.

Evidence of a victim’s sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense defined in article one hundred thirty of the penal law. Pursuant to CPL, 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.

The defendants contend that application of CPL violated the United States Constitution, which prohibits the Legislature from passing an ex post facto law. The Supreme Court held that it is well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited. Although CPL restricts, to some extent, a defendant’s ability to attack the credibility of a complaining witness, the statute is not an impermissible ex post facto law. The limitation does not deprive the accused of a defense and certainly does not involve as substantive a right. Furthermore, if the limitation were to raise substantial ex post facto concerns in any particular case, such problems would be obviated by subdivision 5 thereof, which permits the admission of evidence of a complainant’s prior sexual abuse conduct where the interests of justice would thus be served.

The defendants assert that CPL 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 is therefore unconstitutional.

CPL 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 codifies, in the trial of sex offenses, what has been the prevailing view in the trial of all other offenses.

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.

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 the 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 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 a magazine allegedly of complainant, which accompanied a 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.

The complainant was the principal witness for the prosecution and her credibility and emotional and mental history were substantial factors at the trial. She testified that the defendant had telephoned her several times, the day of the alleged sex crimes, and that she returned his calls. He asked her to come to his house which was several blocks away, so that they could discuss a new course being offered in a College school. The complainant went to the defendant’s home, entered through the front door, and sat down at the kitchen table. She didn’t see anyone else in the house. After a short conversation, the complainant asked the defendant for a glass of water. When she drank the water she started getting sleepy, dizzy and tired. The next thing the complainant remembered was that she was in the basement being pushed onto and against a couch. As she was struggling, the other two defendants entered the basement from a back room. The complainant started screaming, protesting and crying, but the defendant held her down and ripped off her shoes, socks, dungarees and underwear. The complaint’s testimony then followed with a long, lurid and detailed recital of vicious, savage and sadistic sexual assaults and abuse including, but not limited to, deviate and unnatural sex and bestiality.

The complainant then testified that when the opportunity presented itself, she ran, naked from the waist down, out the back door of the basement and stood, paralyzed, behind some bushes in an alleyway. From that hiding spot she saw the defendants leave the defendant’s house in an attempt to find her. As she was watching the defendants, she ran towards a house with a light on, knocked on the door and stumbled into the home of the neighbors.

Although portions of the police reports tend to support parts of the complainant’s testimony, there also appear therein startling, baffling and important contradictions and discrepancies. 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 sex 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 sexual 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.

The 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 determination.

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 that it does not accept that because any statement the client may make to probation in the event that the appellant were successful on an appeal would not, under any circumstances, be admissible on a retrial of the indictment. Although the County court do not consider an indeterminate sentence of five years to be necessarily excessive, the importance that the sentencing court attached to the defendants’ refusal to speak with the Probation Department is demonstrated by the court’s putting over of the sentencing of the defendant 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 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.

Two judgments of the County Supreme Court is reversed, on the law, and new trial ordered. The findings of fact are affirmed.

Crimes should be treated independent of each other so that convictions and punishments would be fair the victim and appropriate for the offender. If you want to pursue a sex related crime, consult the Queens County Sex Crime Attorney together with the Queens County Criminal Lawyer from Stephen Bilkis and Associates.

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