People v. Moore

• Decision Date: 04 December 1989
• Parties: The PEOPLE, etc., Respondent, v. Tracey MOORE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 344

548 N.Y.S.2d 344

156 A.D.2d 394

The PEOPLE, etc., Respondent, v. Tracey MOORE, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 4, 1989.

Matthew Muraskin, Hempstead (Kent V. Moston and Stephanie Carvlin and Alfred O'Connor, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (Bruce E. Whitney and Matthew D. Sansverie, of counsel), for respondent.

Before THOMPSON, J.P., and BRACKEN, RUBIN and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (O'Shaughnessy, J.), rendered October 10, 1986, convicting him of attempted sodomy in the first degree and sexual abuse in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered.

The hearing court properly denied the defendant's motion to suppress evidence of the complainant's identification of him two hours after the crime and her in-court identification testimony. The complainant's identification of the defendant at the crime scene was not unduly suggestive. The purpose of the complainant's observation of the defendant at that time was to confirm that the right person had been arrested (see, People v. McCrimmon, 131 A.D.2d 598, 516 N.Y.S.2d 304). Furthermore, the record indicates that the complainant's observations of the defendant during the commission of the crime provided an independent source for her in-court identification (see, People v. Brnja, 50 N.Y.2d 366, 429 N.Y.S.2d 173, 406 N.E.2d 1066).

However, the trial court's Sandoval ruling (see, People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) was an improvident exercise of discretion requiring a new trial. The court improperly ruled that the prosecution would be allowed to cross-examine the defendant about a sexually deviant practice, not rising to the level of a crime, which had no logical bearing on the question of credibility. Since the prior "bad act" and the crime of attempted sodomy for which the defendant was on trial both involved deviant sexual conduct, the potential prejudice to the defendant was apparent and enormous. Moreover, in making this ruling, the court merely commented that the prior "bad act" was distinguishable from the acts underlying the indictment. It thus appears that the trial court failed to exercise its discretion in that there was no balancing of the probative value of the evidence against its prejudicial impact (see, People v. Williams, 56 N.Y.2d 236, 239-240, 451 N.Y.S.2d 690, 436 N.E.2d 1292).

Similarly, under these facts, it was an improvident exercise of discretion for the court to rule that the prosecutor would be allowed to question the defendant...