Citation Numbers: 186 A.D.2d 285
Judges: Miller
Filed Date: 9/28/1992
Status: Precedential
Modified Date: 1/13/2022
— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Calabretta, J.), rendered November 5, 1990, convicting him of rape in the third degree and endangering the welfare of a child (four counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.
The defendant was charged in a 32-count indictment with raping, sodomizing, sexually abusing, assaulting, and endangering the welfare of his minor daughter during the time period encompassing May 1985 to August 1988. Various counts in the indictment were dismissed at different stages of the proceedings, and 11 counts were finally submitted to the jury. The jury acquitted the defendant of six of those counts and convicted him of five counts: one count of rape in the third degree and four counts of endangering the welfare of a child. On appeal, the defendant takes issue with various evidentiary rulings made by the trial court. We find that a number of these rulings were erroneous and that, since the cumulative impact of these errors cannot be deemed harmless, we reverse and order a new trial.
The defendant contends that the trial court erred in allowing expert testimony with respect to post-traumatic stress syndrome exhibited by victims of child sexual abuse. It is settled that the admission of an expert witness’s opinion is
On the other hand, expert testimony concerning rape trauma syndrome, which concededly is a specific form of post-traumatic stress syndrome, is inadmissible when it inescapably bears solely on proving that a rape has occurred (People v Banks, 75 NY2d 277). Thus, while expert psychiatric evidence may be presented to explain how children who have been repeatedly sexually abused by their stepfather or father are likely to suffer psychologically (People v Keindl, 68 NY2d 410), it is improper for such evidence to be admitted solely to show that the alleged child sexual abuse victim was demonstrating behavior that was consistent with patterns of response exhibited by victims of proven child sexual abuse since "[t]he clear implication of such testimony would be that because the complainant exhibited these symptoms, it was more likely than not that she had been [sexually abused]” (People v Banks, 75 NY2d 277, 284, supra).
Applying the foregoing principles to the instant case, it is clear that the trial court properly admitted expert testimony to explain why the complainant delayed in reporting the sexual abuse (see, People v Taylor, supra; People v Benjamin R., supra).
However, the trial court erred when it allowed, over the defense counsel’s objection, a social worker and psychotherapist, Agnes Wohl, to testify on the prosecution’s direct case
In sum, Wohl’s testimony, taken as a whole, was to the effect that the symptoms exhibited by the complainant, as well as the delayed onset of those symptoms, were consistent with patterns of response exhibited by proven child sexual abuse victims. Under the facts of this case, there was no reason to introduce this testimony, other than to prove that the alleged acts of child sexual abuse occurred (see, People v Banks, supra; see also, People v Bennett, 79 NY2d 464, 473; People v Knupp, 179 AD2d 1030).
We also find the admission of testimony concerning prior uncharged sexual abuse to be erroneous. While this claim was not preserved for appellate review (see, People v Udzinski, 146 AD2d 245), we find the error to be extremely prejudicial and, therefore, review the claim in the exercise of our interest of justice jurisdiction.
On the People’s direct case, the complainant was permitted to testify that her father started to sexually abuse her in approximately 1980 when she was eight or nine years old. She testified that the sexual abuse continued thereafter and that in the eight-year period between 1980 and 1988, they had sexual intercourse on the average of once a week. The trial court computed this to be approximately 416 times. The complainant testified, however, that she had had sexual intercourse with her father "thousands” of times. Since the period covered by the indictment was May 1985 to August 1988, it was error to admit testimony concerning any sexual abuse
The error cannot be considered harmless in view of the fact that the testimony was pervasive, not "brief’ as the People contend. Indeed, the People’s emphasis at the trial was that the defendant abused his daughter for eight years, from 1980 to 1988.
The trial court committed a further error by admitting into evidence a letter which the defendant wrote to his daughter subsequent to the crimes charged in the indictment. The letter did not contain evidence of any impropriety committed by the defendant at any time, nor was it relevant to any issue in the case. The trial court admitted the letter on the ground that it was relevant to the defendant’s state of mind. However, the crimes charged in the indictment did not require proof of state of mind; and, even if they did, the defendant’s state of mind at the time he wrote the letter could not be used to establish his state of mind at the time he allegedly committed the acts contained in the indictment (see, People v Reynoso, 73 NY2d 816). Since the prosecutor used the letter extensively during her cross-examination of the defendant as well as on summation, the error can hardly be considered harmless. In our view, the only purpose the letter served was to inflame the jury against the defendant.
Equally erroneous was the extent to which the trial court permitted the prosecutor to cross-examine the defendant concerning the viewing of a certain pornographic videotape. Contrary to the People’s contention, the defense counsel did not open the door to such extensive cross-examination. On direct examination, the defense counsel had asked the defendant, "You’ve heard testimony that there was a pornographic video in the house at some period of time?”, clearly referring to the complainant’s testimony that some time between March 1 and March 31, 1988, she viewed a pornographic videotape with her father after which they had oral sex and sexual intercourse. The defendant testified that he had heard the testimony but denied that there was any pornographic videotape at the home during that period, although he did admit to watching a pornographic videotape after the complainant had left the house. Upon cross-examination, the prosecutor characterized the defendant’s singular viewing of a pornographic videotape after the complainant left the house as "a recent fascination for porno movies” and then asked the defendant if he had seen various pornographic videotapes, naming the