People v. Anderson

• Decision Date: 12 January 1984
• Parties: The PEOPLE of the State of New York, Respondent, v. Alfred G. ANDERSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 946

470 N.Y.S.2d 946

99 A.D.2d 560

The PEOPLE of the State of New York, Respondent, v. Alfred G. ANDERSON, Appellant.

Supreme Court, Appellate Division,

Third Department.

Jan. 12, 1984.

Dean J. Higgins, Albany, for appellant.

Sol Greenberg, Dist. Atty. (Ilene R. Bergman, Asst. Dist. Atty., Albany, of counsel), for respondent.

Before MAHONEY, P.J., and CASEY, YESAWICH, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Albany County, rendered November 10, 1981, upon a verdict convicting defendant of the crime of rape in the first degree.

On February 28, 1981, the 10-year-old complainant was visiting with her mother and 11-year-old brother at her grandmother's house in the City of Albany. While other family members were busy elsewhere in the house, she was raped by her uncle (aged 18), defendant herein.

Defendant raises several issues on this appeal. First, he argues that the trial court erred in allowing cross-examination of defense witnesses concerning his failure to return home after the rape and his subsequent flight from the Albany area. This contention lacks merit. "Evidence of flight as indicative of a consciousness of guilt is a classic example of the admissibility of * * * circumstantial evidence" (People v. Yazum, 13 N.Y.2d 302, 304, 246 N.Y.S.2d 626, 196 N.E.2d 263). While the probative force of this evidence is limited, that is not grounds for its exclusion (People v. Cathey, 38 A.D.2d 976, 331 N.Y.S.2d 837). We cannot agree with defendant's argument that the evidence of defendant's flight was too speculative to support an inference of consciousness of guilt. The record shows that defendant fled from the city immediately after a conversation with his mother, during which she asked him if he had engaged in sexual intercourse with his niece. Accordingly, an inference that his flight was precipitated by concern over the consequences of his behavior does not appear to be overly speculative. This is particularly true in the absence of any other explanation for defendant's departure (see People v. Bryant, 60 A.D.2d 810, 401 N.Y.S.2d 76, app. dsmd. 44 N.Y.2d 790, 406 N.Y.S.2d 40, 377 N.E.2d 484).

Defendant further contends that the jury charge concerning his flight was inadequate. It is true that the trial court should have instructed the jury as to the limited probative value which may be attributed to evidence of flight (see People v. Limage, 57 A.D.2d 906, 394 N.Y.S.2d 458, affd. 45 N.Y.2d 845, 410 N.Y.S.2d 68, 382 N.E.2d 767, citing People v. Yazum, supra ). However, since at the time of trial, defendant did not request a further charge or except to the charge given, this issue was not preserved for our review (CPL 470.05, subd. 2; People v. Williams, 47 A.D.2d 262, 264, 366 N.Y.S.2d 894). While we may still reverse in the interest of justice (CPL 470.15, subd. 6, par. [a] ), we choose not to do so here, since the other evidence adduced at the trial overwhelmingly established defendant's guilt (see People v. Felcone, 43 A.D.2d 976, 352 N.Y.S.2d 499).

Defendant's next argument, that the complainant's testimony was insufficiently corroborated, is unpersuasive. Under section 130.16 of the Penal Law, defendant may not be convicted of raping his niece solely on her uncorroborated testimony, since the principal element of the crime of rape of which he stands convicted (pursuant to Penal Law, § 130.35, subd. 3) is the victim's incapacity to consent because of her age. However, it is uncontested that the victim's testimony was corroborated by her brother who was 12 at the time of the trial. He testified that he saw his sister and defendant, apparently shortly after the rape took place, while she was standing next to the bed and defendant, whose penis was erect, was putting his pants back on. The brother's statement under oath that he was 12 years old (and therefore competent to testify under oath, pursuant to CPL 60.20, subd. 2) was adequate proof of his age; the court was not, as defendant argues, obliged to require further proof thereof. This is particularly true in view of defendant's failure to object to the brother's testimony at the trial. We note also that the victim's testimony regarding intercourse was corroborated by the physician who examined her on the day in question. He testified that his examination confirmed that she had had sexual intercourse within the last 12 hours. This testimony was...