People v. Gines
| Decision Date | 11 June 1975 |
| Citation | 373 N.Y.S.2d 543,335 N.E.2d 850,36 N.Y.2d 932 |
| Parties | , 335 N.E.2d 850 The PEOPLE of the State of New York, Respondent, v. Jose Luis GINES, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Sara Halbert and Abraham Abramovsky, Brooklyn, for appellant.
Mario Merola, Dist. Atty. (Karen Zelfman Bell, New York City, of counsel), for respondent.
The order of the Appellate Division, 43 A.D.2d 538, 349 N.Y.S.2d 381, should be affirmed. After accosting the complainant in the hallway on the fourth floor of her apartment house, defendant dragged her at knife point to the roof where he proceeded to rob her. Over objection to the entire line of questioning, the complainant was then allowed to testify further that defendant had raped her incident to and immediately following the robbery. Such testimony was admissible to complete the narrative of the episode and to establish the complainant's opportunity to identify defendant as her assailant (People v. Acevedo, 32 N.Y.2d 941, 347 N.Y.S.2d 202, 300 N.E.2d 734).
Additionally, if as the dissent contends, the complainant's testimony here was amplified with lurid particularity concerning the details of the rape to an extent that may have exceeded normal bounds for legitimate purposes of narrative and identification, the issue is not preserved for our review. The only objection was made at the outset and then to any testimony at all with respect to the rape. No objection was made, separate and apart therefrom, that the prosecutor was eliciting inadmissible detail in his interrogation of the witness.
I vote to reverse the order of the Appellate Division and to grant the defendant a new trial.
The majority, relying on People v. Acevedo, 32 N.Y.2d 941, 347 N.Y.S.2d 202, 300 N.E.2d 734, holds that the testimony relating to the uncharged crime of rape 'was admissible to complete the narrative of the episode and to establish the complainant's opportunity to identify defendant as her assailant'.
In Acevedo, which presented a factual situation similar to that here, the complainant testified, in narrative form, as to both the robbery and the uncharged rape. On appeal, a unanimous Court of Appeals found valid the People's contention that, as the rape was part of the single episode resulting in charges against the defendant, its inclusion in the narrative was proper.
In its ruling today on the scope of the testimony held to be admissible under the protective umbrella of narration, the present court goes far beyond Acevedo. On the People's direct case, the questioning of complainant proceeded as follows:
'Q. What happened when you lay on the ground? A. He had intercourse with me.
'Q. Did he do anything with respect to his clothes? A. He unzipped his pants.
'Q. And then what did he do? A. I don't understand.
'Q. What did he then do Miss * * *. You have to tell the jury.
'Q. What did he do after that? A. He went inside me.
'Q. What degree of physical dress were you in at that time? A. I had nothing on.
'Q. Where were your clothes of your own knowledge? A. They were piled up behind me.
'Q. I can't hear your. A. They were piled up behind me.
'Q. Are you familiar with the word 'ejaculation'? A. (Witness indicating affirmatively)
The testimony, according to the majority, was admitted not only 'to complete the narrative,' but also 'to establish the complainant's opportunity to identify defendant'.
The rules governing the admissibility of other crimes represent a balance between the probative value of such proof and the danger of prejudice which it presents to an accused (People v. Schwartzman, 24 N.Y.2d 241, 247, 299 N.Y.S.2d 817, 247 N.E.2d 642). The probative value of the testimony detailing the rape was, at best, slight and the scales weighed heavy on the side of prejudice.
Identity was in issue, as defendant had raised the defense of alibi. Complainant testified that she observed her assailant in the lobby of her apartment building, in the fourth-floor hallway, on the stairway and on the roof, all at times prior to the alleged rape. From these observations complainant was able to cull a description of the assailant so as to make an identification at trial. Testimony of the uncharged rape added nothing to this identification. This is supported by the following question and answer on cross-examination.
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