People v. Diaz
| Citation | 965 N.Y.S.2d 738,20 N.Y.3d 569,2013 N.Y. Slip Op. 01994,988 N.E.2d 473 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Randolfo DIAZ, Respondent. |
| Decision Date | 26 March 2013 |
| Court | New York Court of Appeals |
20 N.Y.3d 569
988 N.E.2d 473
965 N.Y.S.2d 738
2013 N.Y. Slip Op. 01994
The PEOPLE of the State of New York, Appellant,
v.
Randolfo DIAZ, Respondent.
Court of Appeals of New York.
March 26, 2013.
[965 N.Y.S.2d 739]Charles J. Hynes, District Attorney, Brooklyn (Ruth E. Ross and Leonard Joblove of counsel), for appellant.
Lynn W.L. Fahey, Appellate Advocates, New York City (Anna Pervukhin of counsel), for respondent.
PIGOTT, J.
[988 N.E.2d 474]
Defendant, the step-grandfather of the complainant, is alleged to have sexually abused the complainant multiple times in [20 N.Y.3d 572]2006 and 2007, when she was in the fourth and fifth grades. He was charged with course of sexual conduct against a child in the first and second degrees (Penal Law §§ 130.75[1][a]; 130.80[1][a] ) and endangering the welfare of a child (Penal Law § 260.10[1] ).
At a jury trial, the complainant testified that in September 2006, she was living with her mother, her brother, her grandmother, and defendant, in a three-bedroom apartment in Brooklyn. She testified that in the beginning of fourth grade, while the complainant's mother was at work, defendant began sexually abusing her.
The complainant's mother testified that prior to January 2, 2008, she saw nothing to suggest that the complainant might have been abused. Shortly after midnight on January 2, however, the mother found the complainant in her bedroom crying and gasping for air. Complainant told her mother about some of the alleged sexual misconduct of defendant. Mother called the police.
Detective Frank Agostini testified that he recovered sex toys and pornographic videos from a closet in the bedroom shared by defendant and complainant's grandmother. A forensic criminalist determined that DNA on the sex toys did not match that of the complainant.
A physician who examined the complainant testified that he conducted a full genital and anal examination and concluded that there was no “injury” to the complainant's hymen, but “90 percent” of girls who have disclosed sexual intercourse have “normal” intact hymens.
The People also presented the testimony of a psychologist with particular expertise in the field of child sexual abuse. The expert qualified her testimony by stating that she had no dealings with the parties in the case, did not interview the complainant, and reached no conclusions with respect to the case on trial. The witness explained that most children who were sexually abused did not “tell about this right away.”
The prosecutor then asked about offender behavior:
“Q: Have studies been conducted about the manner in which offenders engage children in sexual behavior?
“A: Yes.
“A: No, no, no. You have ...”
“Q: Do all offenders operate in the same manner?
[20 N.Y.3d 573]Defense counsel objected, arguing that the testimony was “supposed to be about alleged victims not about an alleged suspect.” The prosecutor countered that studies had been conducted “in the manner in which offenders engage children in sexual behavior,” making this a legitimate part of a “general” discussion of “child sexual abuse.” The court agreed with the prosecutor.
Defense counsel then argued that the expert could discuss only matters outside the “ken” of the average juror, and “[t]he idea that a family member can create a sense of trust with a child is not beyond the knowledge of the juror”; rather, it is
[988 N.E.2d 475]
“simple common family interactions.” Counsel further argued that allowing such evidence would be outweighed by its prejudice.
[965 N.Y.S.2d 740]When the court suggested that defense counsel address these concerns through cross-examination, counsel protested that “[b]y that time the cat [would be] out [of] the bag” and that it was not permissible to “attach expert testimony to these factors that make[ ] it consistent with our guy's behavior.” Even without posing hypotheticals, counsel argued, the similarity between the complainant's testimony and the evidence from the expert would be too great.
The court rejected these arguments and the prosecutor continued her examination:
“Q: Are there different ways that a child can be engaged in sexual activity?
“A: Sure. There are a number of different ways and part of this is age dependent. Sometimes the activities are introduced as games, sometimes the activities are introduced in the guise of sexual education, sometimes pornography is used.”
The court overruled defense counsel's renewed objection. The expert then continued by providing the following definition of “grooming”:
“It refers to the process by which the offender, first of all, gains access and opportunity to the child, establishes themselves in a trusted authority position over the child and then begins the process of breaking down the child's inhibitions about sex, in other words, how the offender normalizes sexual behaviors.”
[20 N.Y.3d 574]During a break in the proceedings, defense counsel asked that portions of the expert's testimony be stricken, and a curative instruction given. Defense counsel argued that much of the testimony “had nothing to do” with explaining why a victim's behavior would be inconsistent with a layperson's beliefs. Rather, he argued that the expert testified about the ways in which a perpetrator can engage a young victim in sexual activities. She spoke of “ways that a perpetrator could step by step inculcate a young person into sexual acts” and “it mirrored exactly the testimony that we heard here with regard to the use of pornographic videos and with regard to the step by step touching which then leads to stronger touching, which mirrors what the complainant said in this case, the games that they play[ed].” The court denied defense counsel's request.
The defense called a board-certified pediatrician, who examined the complainant's medical records and the fact that she had a “normal” intact hymen. He concluded that given her allegations, the results of her exam were “unexpected,” and stated that it was “extremely improbable” that there was penile-vaginal penetration.
The grandmother testified that the complainant used to watch television and frequently spent time online. There were two or three occasions where the complainant locked herself in the grandmother's room, where the grandmother and defendant kept pornographic movies and sex toys.
Four witnesses testified for the defense that the complainant had a poor reputation for honesty. The complainant's uncle stated that among her family, neighbors and friends, the complainant had a reputation as someone who “lies.” The complainant's...
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