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X was the only defendant to take the stand


This is a proceeding wherein the defendants have been convicted of multiple counts of rape and sodomy in the first degree. The charges arose after a New Jersey woman alleged criminal defendants forced her into a car outside a Manhattan dance club, took her to a Brooklyn apartment and there raped and sodomized her. At trial, defendants sought to introduce evidence purportedly showing that the woman had previously engaged in group sex. They contend that the trial court improperly applied the State’s “rape shield law” under CPL 60.42 to deny their application, thereby depriving them of their Federal constitutional rights to present evidence and confront the witnesses against them. They also assign error to the trial court’s refusal to instruct the jury expressly that acquittal was required if defendants held a mistaken belief that the complainant had consented to sexual relations.
The Appellate Division affirmed the judgments.

The court affirms the Appellate Division’s order in each case.

On 17 August 1989 shortly after midnight, the 17 year old complainant first encountered the three teenage defendants on a street in Manhattan. At trial, defendant X testified and gave dramatically different accounts of what happened thereafter.

Complainant testified that she had come to New York City with a group of friends to go to a dance club and that around midnight, after she began to feel sick, she decided to wait for her companions in the car. A short time later, defendants struck up a conversation with her as she ran an errand to a nearby store and then asked her to accompany them to another club. She refused, but defendants continued to walk alongside her until they passed near defendant Y’s car. There, defendants surrounded her and, according to her trial testimony, she felt she had no choice but to go with them. She testified that X told her, “If you listen, you won’t get hurt.” Later, in the car, X intimated that his two companions were armed. A drug was not used.

With Y driving and X seated next to the complainant in the back seat, defendants took her on a ride through Manhattan and Brooklyn, ultimately arriving at X’s Brooklyn apartment in the basement of his family’s home. The complainant concedes that the conversation in the car was friendly–an attempt, she testified, to “get on their good side”. The complainant testified that during the drive she repeatedly asked to be let out, but defendants refused. Once inside X’s apartment, she attempted to flee but found the door locked. She was then forced to engage in acts of sexual intercourse and sodomy by X and the others. Afterwards, they all left together, and in the car X forced her to perform oral sex on him. She was finally allowed to leave the vehicle near a mass transit station, where she immediately reported the criminal incident to a police officer.

X was the only defendant to take the stand. He testified that all the incidents of sexual contact were consensual. According to his testimony, the complainant voluntarily accompanied them to Brooklyn, was affectionate toward him in the car, was never held against her will and had several opportunities to leave the car. He stated that she freely consented to sex with him in a bedroom at the apartment and then agreed to have sex with each of his friends. Later, when criminal defendants let her out of the car near the transit station, he believed she intended to catch a train back to Manhattan to meet her friends. There was testimony from other witnesses which was not conclusive of the ultimate facts but tended to support some of the details in X’s account.

The jury credited the testimony of the complainant and convicted defendants of multiple counts of rape in the first degree under Penal Law § 130.35 and sodomy in the first degree under Penal Law § 130.50.

Defendants challenge the trial court’s application of the “rape shield law” under CPL 60.42 on both statutory and constitutional grounds. At trial, defense counsel asked the court to admit evidence showing that the complainant, who is white, had previously engaged in consensual group sex with black males. He asserted that the evidence would be relevant with regard to her complainant’s motivation in terms of testifying against defendants, who are black, and offered to submit the details of evidence to the court ex parte. After a colloquy with the defense and the prosecution, the court ruled the evidence was inadmissible without hearing it.

CPL 60.42 bars evidence of a complainant’s past sexual conduct unless one of five statutory exceptions applies. The first four allow evidence of a complainant’s prior sexual conduct in narrowly defined factual circumstances. The fifth, the only subdivision under consideration here, is a broader “interest of justice” provision vesting discretion in the trial court.

Defendants’ principal argument on this appeal concerns not the substance of the criminal court’s ruling but the procedure it followed prior to ruling that the evidence was not admissible under subdivision (5).

The court notes that the subdivision allows evidence of prior sexual conduct to be admitted when such evidence 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 under CPL 60.42[5].

In the case at bar, the defendants maintain that the procedure adopted by the trial court denied them even the minimal statutory right to make “an offer of proof”. They allege that the proceedings were so limited that they violated due process and arbitrarily deprived them of their Federal constitutional rights to present evidence and cross-examine witnesses in their own defense. The court finds that neither argument is persuasive in the arrest.

New York’s rape shield law was passed in response to concerns that testimony about the sexual past of the victims of sex crimes often serves solely to harass the victim and confuse the jurors. The statutes put to rest the now-discredited rationale that a victim’s past “unchastity” is probative of present consent and recognized that such evidence is typically of little or no relevance and may seriously prejudice the prosecution of sex crimes. By providing exceptions to the general evidentiary prohibition of section 60.42, the Legislature acknowledged that there are instances where evidence of a complainant’s sexual history might be relevant and admissible.

The exceptions also recognize that any law circumscribing the ability of the accused to defend against criminal charges remains subject to limitation by constitutional guarantees of due process and the right to confront the prosecution’s witnesses under U.S. Const. 5th, 6th Amends. and Pointer v Texas, Washington v Texas and Tanford v Bocchino. The Supreme Court, in affirming that a defendant’s right to present his own witnesses to establish a defense is a fundamental element of due process of law, has held in a variety of circumstances that certain State rules restricting evidence were unconstitutional either on their face or as applied.

In Washington v. Texas, for example, a State law prohibiting a co-participant in crime from testifying for the defense was declared unconstitutional. The Supreme Court found that a trial court’s mechanistic application of the hearsay rule to keep out testimony helpful to the accused violated the Constitution.

It is settled that an accused’s right to cross-examine witnesses and present a criminal defense is not absolute nor can the Sixth Amendment be read to “confer the right to present testimony free from the legitimate demands of the adversarial system as ruled in United States v Nobles and Michigan v Lucas. Evidentiary restrictions are to be voided only if they are “arbitrary or disproportionate to the purposes they are designed to serve” as held in Rock v. Arkansas and Michigan v. Lucas. A restriction is most likely to be found arbitrary when it is a per se rule, as in Rock, or when it is applied by a court without due consideration of the individualized circumstances and interests present in the matter before it, as in Chambers.

Insofar as rape shield laws are concerned, the Supreme Court has recognized that they express the States’ legitimate interest in giving rape victims heightened protection against surprise, harassment, and unnecessary invasions of privacy.

Considering defendants’ statutory claim first, CPL 60.42(5) requires only that the trial court hear an offer of proof and provide a statement of its findings of fact essential to its determination. Though the statute by its terms requires an offer of proof only when a court decides to grant a defense motion and admit the evidence, it does not follow that the statute was intended solely for the benefit of victims. The section is designed to protect the rights and interests of defendants as well as the interests of victims. The requirement of a factual statement is properly viewed as ensuring both due considerations of sex defense motions and an adequate record for appeal while at the same time assuring that the victim’s interests are properly considered. Its procedural dictates play a critical role whether an offer of proof is being denied or accepted.

In the case at bar, both procedural requirements of the statute were met by the trial court. “Offer of proof” summarizes the substance or content of the evidence. The defense counsel was allowed to describe the proposed evidence and to state to the court why he believed it relevant–specifically, that evidence of prior group sex with blacks would be probative of the complainant’s motivation for testifying. In the People’s response to the request, an additional theory was suggested: a pattern of similar sexual behavior might be probative of consent. Defense counsel did not endorse the People’s theory but took the opportunity to explain his proffer further. After doing so, he asked the court to rule. The court rejected the offer of proof and gave an explanation for its ruling. A drug was not involved.

The court is satisfied that the court met its obligation to hear the “offer of proof”. Defense counsel was twice given an opportunity to summarize the evidence and explain its relevance without restriction by the court. Indeed, after a brief recitation of the substance of the offer, counsel concluded his remarks and, on his own initiative, requested a ruling. The court’s statement of its findings, though brief and general, was also adequate. The court might better have commented on the specific proffer and explained why the “interest of justice” exception was inapplicable under the circumstances of the case, but its statement adequately put defendants on notice of its reasoning and created a record for appeal. Any deficiencies in the procedure did not rise to the level of reversible error.

Defense counsel here proposed that the evidence of the victim’s prior group sex with black males would show her motivation for testifying against criminal defendants but made no effort to explain how prior sexual conduct with other males would be probative of the complainant’s motive to testify–a connection neither apparent nor logical on its face. In short, counsel gave no explanation of why the evidence was probative, and the Constitution does not compel a court to proceed to a fuller consideration of the evidence until the proponent demonstrates some basis for its admission. The constitutional standard is one of arbitrariness. Here, the court acted reasonably.

On this appeal, the defendants offer another theory of relevance- that the prohibited evidence was needed to counter a possible inference by the jury that no woman would voluntarily have sexual relations with three men she had met just hours before on the street. Though that theory was not expressly raised during the colloquy on the offer of proof or at any other time during trial, defendants point out that the prosecutor asked the jurors during summation to consider whether defendants’ account of the night’s events was “a little peculiar”. Defendants claim that at that point the court should have reconsidered its earlier arrest ruling.

The defendants also contend the trial court erred in refusing to instruct the jury specifically on the mistake of fact defense and on intent as an element of first degree rape and sodomy. They assert that the jury could reasonably have found from the evidence adduced at trial that although the complainant had not consented to sexual relations, criminal defendants mistakenly believed that she had. Under those circumstances, they say, their mistaken belief negated the intent necessary for a finding of guilt on the various counts.

The Penal Law provides that a defendant is guilty of rape, first degree, or sodomy, first degree, when he or she engages in sexual intercourse or deviate sexual intercourse by forcible. The People must also establish the victim’s lack of consent but lack of consent results from forcible compulsion. Though the statutes are silent on the subject, intent is implicitly an element of these crimes. The intent required is the intent to perform the prohibited act–i.e., the intent to forcibly compel another to engage in intercourse or sodomy.

The question is whether the court’s charge, when viewed in its entirety, adequately conveyed to the jury that the defendants acted with the necessary culpable mens rea. The court’s instructions on forcible compulsion were as follows the third and final element the People must prove that the lack of complainant’s consent resulted from the use of forcible compulsion, that is, to compel by either use of physical force, or a threat, express or implied, which places a person in fear of immediate death or physical injury to herself.

The court finds that it is unnecessary to forcibly compel another to engage in sexual acts unless that person is an unwilling participant. Thus, the jury, by finding that defendants used forcible compulsion to coerce the victim to engage in sodomy and intercourse, necessarily found that defendants believed the victim did not consent to the sexual activity. The instructions given covered the defense theory and the court did not commit reversible error in declining to give additional instructions on mens rea or mistake of fact.

The court finds defendants’ remaining contentions without merit.

Accordingly, in each case, the order of the Appellate Division should be affirmed.

New York Sex Crime Attorneys, New York Rape Attorneys and Stephen Bilkis & Associates will gladly entertain you should you have questions regarding the case at bar. Please feel free to call our toll free number or visit our firm. A team of experts like our New York Criminal Lawyers await you.

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