People of the State of New York v. J.F. Montgomery
| Decision Date | 27 October 2005 |
| Docket Number | 14930. |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. J.F. MONTGOMERY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Kane, J. Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.), rendered May 23, 2003, upon a verdict convicting defendant of the crimes of sodomy in the first degree, sexual abuse in the first degree, forcible touching and endangering the welfare of a child.
A jury convicted defendant of sodomy in the first degree, sexual abuse in the first degree, forcible touching and endangering the welfare of a child based on allegations that he placed his mouth on the 15-year-old victim's vagina and digitally penetrated her vagina through the use of physical force while threatening her with a knife. Although we disagree with defendant's argument that the verdict was against the weight of the evidence, we reverse based on the lack of necessary limiting instructions.
The victim testified that while watching a movie with defendant and his girlfriend, defendant began rubbing her thighs, belly and breasts. After she and the girlfriend protested, defendant ordered the girlfriend out of the room. He then obtained a knife, which he held to the victim's throat while telling her to lower her pants. She did not comply, so he lowered her pants, pushed her onto the couch and placed his mouth on her vagina. When she resisted, he slapped her face, then placed his fingers in her vagina. As she continued to struggle, he threw her to the floor and told her to leave, ordering her to return the following day so he could "screw" her and threatening her not to tell. She went home, where her family noticed that she was upset, discovered what had happened and called the police. The victim's mother and sister testified that the victim returned home that evening shaken and upset, and eventually revealed the abuse she had suffered. Police officers testified about her split lip, upset emotional state and statements that night. A registered nurse who examined the victim, and a forensic pediatrician who reviewed the medical records, opined that the victim's minor injuries were consistent with her version of events.
Defendant presented a medical expert who testified that the examination results were inconclusive and the physical evidence alone was not indicative of sexual assault. Defendant's girlfriend testified that nothing happened on the night in question, although she had given police two contradictory statements, one of which implicated defendant. Several other witnesses testified that they were neighbors or they stopped by on the night in question and observed nothing unusual. Finally, defendant testified that he never touched the victim and she was retaliating against him for failing to pay attention to her. Defendant admitted that he was alone in the room with the victim that night and that he had a knife, although he claimed he only used the knife to cut food. "`Weigh[ing] the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony,'" and according due deference to the jury's opportunity to observe the witnesses' demeanor and evaluate their credibility (People v Bleakley, 69 NY2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]; see People v Gibson, 2 AD3d 969, 971 [2003], lv denied 1 NY3d 627 [2004]; People v Plaisted, 2 AD3d 906, 908 [2003], lv denied 2 NY3d 744 [2004]), the verdict was not against the weight of the evidence.
The prosecution was permitted to impeach defendant's girlfriend with her prior written statement to police. Although the People called her as their witness, when defense counsel exceeded the scope of the direct examination the girlfriend became a defense witness "properly subject to impeachment by the People" (People v Dolan, 172 AD2d 68, 76 [1991], lv denied 79 NY2d 946 [1992]; see People v Maerling, 64 NY2d 134, 141 [1984]).* Nevertheless, the prior inconsistent statement was admissible only for impeachment purposes, not as affirmative evidence of guilt or defendant's propensity to commit crimes (see People v Carroll, 37 AD2d 1015, 1016 [1971]). Defense counsel's representation was deficient because he failed to object to the admission of this testimony or request any limiting instructions either when the testimony was first elicited, when the prosecutor quoted it in her summation or in the final charge to the jury (see People v Greene, 306 AD2d 639, 642-643 [2003], lv denied 100...
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