People v. Asmar

• Decision Date: 27 February 1996
• Citation: 639 N.Y.S.2d 907,168 Misc.2d 247
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Maroun ASMAR, Defendant.
• Court: New York County Court

Page 907

639 N.Y.S.2d 907

168 Misc.2d 247

The PEOPLE of the State of New York, Plaintiff, v. Maroun ASMAR, Defendant.

Nassau County Court.

Feb. 27, 1996.

Denis E. Dillon, District Attorney of Nassau County, Mineola (Gail Ennis of counsel), for plaintiff.

Martin Silberg, Mineola, for defendant.

DONALD P. DeRIGGI, Judge.

This is a motion in limine by the district attorney in conjunction with a rape-sodomy-sexual abuse trial beginning against the defendant.

Initially it should be noted that the defendant's counsel has indicated that he will raise the issue of consent in his opening statement.

The people seek to introduce in their case-in-chief testimony from the complainant and her employer, to the effect that one month before the alleged rape-sodomy-sexual abuse took place, the defendant accosted the complainant, sexually touched her and made a lewd proposal and that, in response thereto, the complainant took certain actions designed to impede the defendant's access to the store and to herself.

They seek authorization to allow testimony that not only did the complainant orally reject this defendant's advances but also that she told her employer to contact the defendant's employer for the purpose of requesting that the defendant make deliveries at times other than during the hours in which the complainant worked. The people also seek authorization to permit testimony to the effect that two weeks before the charges arose, the complainant asked a customer to remain in the store when the defendant appeared. The complainant also allegedly told her husband and another friend about the defendant's words and acts and contends that another friend told her that defendant attempted to kiss her.

The district attorney requests a ruling permitting this testimony, claiming that it is relevant and non-prejudicial and that it reflects the complainant's state of mind on the issues of consent, forcible compulsion, fear and her relationship with the defendant.

Forcible Compulsion

The district attorney has offered a series of cases in support of their request to introduce the "state of mind" testimony. These cases deal with the issue of "forcible compulsion" in rape cases and demonstrate that the courts have permitted the people to introduce proof that the defendant had committed past acts of sexual violence and that the complainant's knowledge thereof reflected on her "state of mind" and the issues of forcible compulsion and consent.

Courts have permitted evidence of prior assaults as relevant to explain the conduct of a victim and to corroborate the testimony of a forcible rape, but, as discovered in People v. Johnson, 37 A.D.2d 218, 221, 322 N.Y.S.2d 796 (3rd Dept.1971), proper instructions must be given that the evidence was received for that limited purpose.

Further, evidence of previous incidents in which a defendant sexually molested a complainant have been properly admitted into evidence to show a complainant's ongoing fear of a defendant and in support of the element of forcible compulsion. People v. Hudy, 73 N.Y.2d 40, 538 N.Y.S.2d 197, 535 N.E.2d 250 (1988); People v. Lewis, 69 N.Y.2d 321, 514 N.Y.S.2d 205, 506 N.E.2d 915 (1987).

It is well established that evidence otherwise relevant to prove some material fact is not necessarily rendered inadmissible even though it reveals that a defendant has committed another crime. People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901); People v. Sims, 110 A.D.2d 214, 494 N.Y.S.2d 114 (2d Dept.1985). However, the court must balance the probative value of this evidence against its potential prejudice to the defendant. People v. Thompson, 158 A.D.2d 563, 551 N.Y.S.2d 332 (2nd Dept.1990).

In order for such evidence to be probative, the People must establish a logical link between the evidence of the past assaults by the defendant on the complainant and the material issues of forcible compulsion and lack of consent. People v. Velasquez, 141 A.D.2d 882, 530 N.Y.S.2d 208 (2d Dept.1988); People v. DeLeon, 135 A.D.2d 555, 521 N.Y.S.2d 777 (2d Dept.1987). Once this showing is made, the trial court must then properly weigh the probative value of this evidence against its potential prejudice. People v. Alvino, 71 N.Y.2d 233, 525 N.Y.S.2d 7, 519 N.E.2d 808 (1987). When this balancing is done, the courts have generally held that the trial courts have not improvidently exercise their discretion by permitting such testimony. People v. Hudy, supra; People v. Thompson, 72 N.Y.2d 410, 534 N.Y.S.2d 132, 530 N.E.2d 839 (1988); People v. Lewis, supra; People v. Tas, 51 N.Y.2d 915, 434 N.Y.S.2d 978, 415 N.E.2d 967 (1980); People v. Coleman, 42 N.Y.2d 500, 399 N.Y.S.2d 185, 369 N.E.2d 742 (1977); People v. George, 197 A.D.2d 588, 602 N.Y.S.2d 643 (2nd Dept.1993); People v. Velez, 159 A.D.2d 665, 553 N.Y.S.2d 429 (2nd Dept.1990); People v. Ascheim, 118 A.D.2d 649, 499 N.Y.S.2d 801 (2nd Dept.1986).

The Court of Appeals in People v. Yannucci, 283 N.Y. 546, 549, 29 N.E.2d 185 (1940), stated the rule as follows: "It would seem that there is no way jurymen can ever determine whether a woman fails to resist attack because of fear of immediate and great bodily harm, which she has reasonable cause to believe will be inflicted upon her, unless they consider the surrounding circumstances."

The cases presented by the people are not dispositive of this matter however, because the testimony sought to be introduced here does not reach the level of intimidation contained in those examples offered in support. The fact that the defendant allegedly touched the complainant's buttock and made a lewd proposal, does not demonstrate that he is a violent person and does not measure up to the type of acts portrayed in the offered cases as being the basis for a justly held concept paralleling the requisite "forcible compulsion". Rather, the defendant's acts establish what might be referred to as an "amorous design". But, significant on the issue of consent, is the complainant's reaction of manifest fear confirmed by her acts to keep the defendant away.

Victim's State of Mind

Another line of cases contributes further to the analysis at hand. Several of these cases involve homicides. In the relevant portions of these cases, the people sought to introduce testimony that 1) the deceased told the witness that he intended to meet the defendant at a certain place relevant to the people's case and 2) that he, the deceased, told the witness that he was afraid the defendant was going to kill him. The Courts have permitted the first but not the second.

In People v. Bernard, 214 A.D.2d 578, 578-579, 625 N.Y.S.2d 67 (2d Dept.1995), the court said:

"The trial court also did not err in admitting into evidence testimony regarding the deceased victim's statement on the night of the shooting of his intention to meet someone named 'Mike'. Under the state of mind exception to the hearsay rule, a declarant's statement that he intends to meet another is admissible 'where the statement is made under circumstances that make it probable that the expressed intent [is] a serious one, and that it [is] realistically likely that such a meeting would in fact take place' (People v. Malizia, 92 A.D.2d 154, 160 , affd. 62 N.Y.2d 755 [476 N.Y.S.2d 825, 465 N.E.2d 364], cert. denied 469 U.S. 932 [105 S.Ct. 327, 83 L.Ed.2d 264]; see also, People v. Bongarzone, 116 A.D.2d 164, 169-170 , affd. 69 N.Y.2d 892 [515 N.Y.S.2d 227, 507 N.E.2d 1083]; United States v. Pheaster, 544 F.2d 353 [ (9th Cir) ], cert. denied sub nom; Inciso v. United States, 429 U.S. 1099 [97 S.Ct. 1118, 51 L.Ed.2d 546]. In the present case, the deceased victim's statement was made under circumstances which made it probable that such a meeting would in fact take place."

In U.S. v. Brown, 490 F.2d 758 (D.C.Cir.1973), the trial court permitted the complainant's wife to testify that the complainant told her he was afraid the defendant would kill him. The Circuit Court for the District of Columbia reversed the conviction, concluding that the complainant's state of mind on the issue of homicide was not relevant and was prejudicial to the defendant, but spoke at length on concepts relevant to our case:

"Briefly stated, the state of mind exception to the hearsay rule allows the admission of extrajudicial statements to show the state of mind of the declarant at that time if that is at issue in the case ... It also allows such statements to show a future intent of the declarant to perform an act if the occurrence of that act is at issue. Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892)." Supra at 762.

"Quite a number of courts have confronted facts similar to those here involving hearsay statements made by the victim of a homicide which inferentially implicate the defendant. Such statements by the victims often include previous threats made by the defendant towards the victim, narrations of past incidents of violence on the part of the defendant or general verbalizations of fear of the defendant. While such statements are admittedly of some value in presenting to the jury a complete picture of all the facts and circumstances surrounding the homicide, it is generally agreed that their admissibility must be determined by a careful balancing of their probative value against their prejudicial effect. Courts have recognized that such statements are fraught with inherent dangers and require the imposition of rigid limitations. The principal danger is that the jury will consider the victim's statement of fear as somehow reflecting on defendant's state of mind rather than the victim's--i.e., as a true indication of defendant's intentions, actions, or culpability. Such inferences are highly improper and where there is a strong likelihood that they will be drawn by the jury the danger of injurious prejudice is particularly evident.

"The quantum of prejudice, as stated above, is highest when the circumstantial facts in the statement are intimately related...