People v. Caban

• Decision Date: 11 March 2015
• Docket Number: 2011-09176
• Parties: The PEOPLE, etc., respondent, v. Ernesto CABAN, appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 808

6 N.Y.S.3d 73

2015 N.Y. Slip Op. 01959

The PEOPLE, etc., respondent

v.Ernesto CABAN, appellant.

2011-09176

Supreme Court, Appellate Division, Second Department, New York.

March 11, 2015.

Michael F. Dailey, Bronx, N.Y., for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.

RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.

Opinion

Appeal by the defendant from a judgment of the County Court, Westchester County (Cacace, J.), rendered September 6, 2011, convicting him of a course of sexual conduct against a child in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On appeal, the defendant contends that the trial court improperly admitted “prompt outcry” testimony, and that its Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) deprived him of a fair trial. We disagree.

Evidence that a sexual assault victim promptly complained about the incident is admissible to corroborate the allegation that an assault took place (see People v. Rice, 75 N.Y.2d 929, 931, 555 N.Y.S.2d 677, 554 N.E.2d 1265 ; People v. Deitsch, 237 N.Y. 300, 304, 142 N.E. 670 ). “An outcry is prompt if made ‘at the first suitable opportunity’ [People v. O'Sullivan, 104 N.Y. 481, 486, 10 N.E. 880 ], and ‘is a relative concept dependent on the facts' [People v. McDaniel, 81 N.Y.2d 10, 17, 595 N.Y.S.2d 364, 611 N.E.2d 265 ]” (People v. Shelton, 1 N.Y.3d 614, 615, 777 N.Y.S.2d 9, 808 N.E.2d 1268 ). “There can be no iron rule on the subject. The law expects and requires that it should be prompt, but there is and can be no particular time specified” (Higgins v. People, 58 N.Y. 377, 379 ). “[W]hat might qualify as prompt in one case might not in another” (People v. McDaniel, 81 N.Y.2d at 17, 595 N.Y.S.2d 364, 611 N.E.2d 265 ).

Here, the trial court permitted testimony concerning the victim's first “outcry” to a friend which occurred approximately one year after the abuse had ended, as well as testimony that she informed her mother about the defendant's conduct approximately three years after the last alleged incident. Under all of the circumstances of this case, including the victim's young age, and the fact that she lived with the defendant during the relevant period, the trial court properly admitted evidence of the victim's outcry to her friend (see People v. McDaniel, 81 N.Y.2d at 16, 595 N.Y.S.2d 364, 611 N.E.2d 265 ; People v. Shelton, 1 N.Y.3d 614, 777 N.Y.S.2d 9, 808 N.E.2d 1268 ; People v. Rosario, 100 A.D.3d 660, 661, 953 N.Y.S.2d 299 ; People v. Lapage, 57 A.D.3d 1233, 871 N.Y.S.2d 429 ; People v. Stuckey, 50 A.D.3d 447, 448, 855 N.Y.S.2d 141 ; People v. Coleman, 37 A.D.3d 846, 832 N.Y.S.2d 219 ; People v. Aguirre, 262 A.D.2d 175, 692 N.Y.S.2d 325 ). Although the testimony regarding the victim's disclosure to her mother, three years after the events in question, cannot be considered “prompt outcry” and was, thus, inadmissible, such error was harmless (see People v. Pruitt, 99 A.D.3d 413, 413, 951 N.Y.S.2d 515 ). The evidence of the defendant's guilt was overwhelming, and there is no significant probability that, absent the error, the defendant would have been acquitted (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Cross, 116 A.D.3d 708, 709, 983 N.Y.S.2d 90 ; People v. Leon, 98 A.D.3d 1065, 1065, 950 N.Y.S.2d 588 ; People v. Sweeney, 92 A.D.3d 810, 811, 938 N.Y.S.2d 452 ). In addition, the court gave a proper “ prompt outcry” instruction to the jury (see People v. Green, 108 A.D.3d 782, 785, 968 N.Y.S.2d 685 ; People v. Bernardez, 85 A.D.3d 936, 938, 925 N.Y.S.2d 604 ).

Contrary to the defendant's contention, the trial court's Sandoval ruling was a provident exercise of its discretion, and the defendant was not deprived of a fair trial (see People v. Hayes, 97 N.Y.2d 203, 207–208, 738 N.Y.S.2d 663, 764 N.E.2d 963 ; People v. Sandoval, ...