People v. Carroll

• Decision Date: 24 February 1986
• Citation: 117 A.D.2d 815,499 N.Y.S.2d 135
• Parties: The PEOPLE, etc., Respondent, v. Gilbert T. CARROLL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 135

499 N.Y.S.2d 135

117 A.D.2d 815

The PEOPLE, etc., Respondent, v. Gilbert T. CARROLL, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 24, 1986.

John F. Middlemiss, Jr., Ronkonkoma (Karl E. Bonheim, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Patricia A. Harrington, of counsel), for respondent.

Before LAZER, J.P., and MANGANO, BRACKEN and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Suffolk County (Mallon, J.), rendered March 14, 1984, convicting him of rape in the first degree, rape in the third degree, sexual abuse in the first degree, and aggravated sexual abuse, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The charges against defendant arose out of an incident on either April 4 or 5, 1983, in which defendant and three other men allegedly tied a 15-year-old girl to a bed and raped and sexually abused her. The testimony of the complaining witne showed that defendant not only raped her but also inserted a pool cue into her vagina. Defendant did not testify but did call three alibi witnesses who testified that he spent the evenings of April 4 and April 5 with his fiancee and various other friends. The evidence adduced at trial was sufficient to prove guilt beyond a reasonable doubt (see, People v. Foster, 64 N.Y.2d 1144, 490 N.Y.S.2d 726, 480 N.E.2d 340, cert. denied 474 U.S. 857, 106 S.Ct. 166, 88 L.Ed.2d 137).

Defendant contends that he was deprived of a fair trial by the prosecutor's cross-examination of his alibi witnesses concerning their failure to disclose the exculpatory information to an investigator from the District Attorney's office who contacted them. Since this cross-examination was not objected to at trial, defendant has failed to preserve the issue for appellate review (see, People v. Mandel, 48 N.Y.2d 952, 425 N.Y.S.2d 63, 401 N.E.2d 185, cert. denied 446 U.S. 949, 100 S.Ct. 2913, 64 L.Ed.2d 805). In any event, the cross-examination was proper since the prosecutor established that the witnesses were aware of the charges against defendant, had reason to recognize that they possessed exculpatory information, had a reasonable motive for acting to exonerate the defendant, and were familiar with the means to make the information available to law enforcement authorities (see, People v. Dawson, 50 N.Y.2d 311, 428 N.Y.S.2d 914, 406 N.E.2d 771). No error was committed by the court in not charging the jury that the witnesses had no obligation to come forward with exculpatory information since such a charge was never requested (see, People v. Dawson, supra ). While we agree with defendant that the notice of alibi should not have been admitted into evidence, this was harmless error.

We find no abuse of discretion in the trial court's ruling which precluded cross-examination of the complaining witness concerning her sexual conduct. Since defendant never raised the issue of consent, the prejudicial effect of such testimony would clearly outweigh its probative value (see, CPL 60.42[5]; People v. Rockwell, 97 A.D.2d 853, 469 N.Y.S.2d 252; People v. Barlow, 88 A.D.2d 668, 451 N.Y.S.2d 668). It was also a proper exercise of discretion to deny defendant's application to preclude cross-examination concerning his prior conviction for attempted robbery (see, People v. Duffy, 36 N.Y.2d 258, 367 N.Y.S.2d 236, 326 N.E.2d 804, cert. denied 423 U.S. 861, 96 S.Ct. 116, 46...