People v. Cohen

• Decision Date: 07 February 1994
• Citation: 607 N.Y.S.2d 374,201 A.D.2d 494
• Parties: The PEOPLE, etc., Respondent, v. Gary F. COHEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 374

607 N.Y.S.2d 374

201 A.D.2d 494

The PEOPLE, etc., Respondent, v. Gary F. COHEN, Appellant.

Supreme Court, Appellate Division,

Second Department.

Feb. 7, 1994.

Newman & Schwartz, New York City (Robert Hill Schwartz and Richard A. Greenberg, of counsel), for appellant.

James M. Catterson, Jr., Dist. Atty., Riverhead (John J. Ribeiro, Steven A. Hovani, Michael J. Miller, and Glenn Green, of counsel), for respondent.

Before BRACKEN, J.P., and SULLIVAN, KRAUSMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeals by the defendant from two judgments of the County Court, Suffolk County (Tisch, J.), both rendered November 14, 1991, convicting him of sodomy in the first degree (nine counts), sexual abuse in the second degree (two counts), sexual abuse in the third degree (eight counts), and endangering the welfare of a child under Indictment No. 185/90, sexual abuse in the first degree (seven counts) under Indictment No. 1338/90, upon jury verdicts, and imposing sentences.

ORDERED that the judgments are affirmed.

The defendant, a pediatrician, was convicted of sexually abusing and sodomizing several boys who were either patients of his medical practice or individuals whose families he had befriended.

Initially, the defendant contends that he was denied a fair trial because the court examined prospective jurors regarding their knowledge of the case, as a result of pretrial publicity, outside of his presence. 158 Misc.2d 262, 598 N.Y.S.2d 439. In People v. Sloan, 79 N.Y.2d 386, 583 N.Y.S.2d 176, 592 N.E.2d 784, the Court of Appeals held that such a procedure violated a defendant's right to be present at a material stage of the trial. We have recently determined, however, that the rule enunciated in Sloan should be applied prospectively (i.e., the rule only applies to those cases in which jury selection occurred after April 7, 1992, the date on which Sloan was decided) (see, People v. Hannigan, 193 A.D.2d 8, 601 N.Y.S.2d 928). In the case before us, jury selection occurred prior to April 7, 1992. Thus, reversal is not required on that ground.

The defendant also contends that he was excluded from a material stage of the trial when counsel exercised their challenges to the jury in chambers, outside of his presence. The record reveals, however, that, while counsel initially advised the court of their challenges when the defendant was not present, the challenges were eventually given effect in his presence when challenged jurors were excused and others were sworn in open court (see, People v. Melendez, 182 A.D.2d 644, 582 N.Y.S.2d 944; see also, People v. Yonamine, 192 A.D.2d 687, 597 N.Y.S.2d 102).

Prior to his indictment on the charges herein, the defendant pleaded guilty to sexual abuse in the second degree in connection with an incident involving a minor who was not a complainant in the cases before us. A presentencing report was prepared in connection with that plea, although the defendant's sentencing thereon was deferred until the charges in these cases were resolved. Prior to trial, the People made an application to be allowed, inter alia, to use on the People's direct case the defendant's statements contained in the presentence report prepared in connection with the earlier matter in which the defendant had pleaded guilty. The court ruled that those statements could only be used to impeach the defendant if he took the witness stand.

The defendant contends that the court's ruling violated CPL 390.50, which provides for the confidentiality of information contained in presentence reports. The defendant also contends that allowing the prosecutor to impeach him with the statements contained in his presentence report violates public policy because the release of such information would hinder his rehabilitation.

Although CPL 390.50 generally provides for the confidentiality of presentence reports, CPL 390.50(1) allows disclosure "where specifically required or permitted by statute or upon specific authorization of the court." In this case, the trial court specifically authorized the use of the statements contained in the defendant's presentence report under very limited circumstances. Moreover, we do not accept the defendant's contention that the use of those statements for...