People v. Harris
| Decision Date | 22 May 1989 |
| Citation | 150 A.D.2d 723,541 N.Y.S.2d 593 |
| Parties | The PEOPLE, etc., Respondent, v. Joachim HARRIS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Abbott, Duncan & Wiener, New York City (Barry R. Abbott, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Anthea H. Bruffee and Sherry Chase-Conant, of counsel), for respondent.
Before LAWRENCE, J.P., and KUNZEMAN, RUBIN and KOOPER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered March 24, 1987, convicting him of rape in the third degree (eight counts) and sodomy in the third degree (three counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
The defendant was charged with sexual abuse in the third degree (57 counts), rape in the third degree (19 counts), sodomy in the third degree (18 counts) and endangering the welfare of a child (2 counts). The charges in the indictment were set forth in series of five count groupings (three sexual abuse, one rape and one sodomy) based upon acts occurring over an approximate period of a month beginning with the month of November 1984 with respect to the 1st to 5th counts, and extending to the month of April 1986, with respect to the 86th to 90th counts. The 91st to 95th counts specified that the acts occurred on May 6, 1986. Ultimately, only eight counts of rape in the third degree and three counts of sodomy in the third degree were submitted by the court for the jury's consideration.
We find no merit to the defendant's contention that he was deprived of his right to testify before the Grand Jury.
CPL 190.50(5)(a) requires, in pertinent part, that as a prerequisite to the exercise of the defendant's right to testify before the Grand Jury, a written notice is to be served upon the district attorney, which notice includes an address to which communications may be sent. The oral notice given by the attorney who represented the defendant at his arraignment, that the defendant wished to testify at the Grand Jury hearing "subject * * * to final determination by [his] attorneys, that [he] do[es] wish to testify in the Grand Jury", was not adequate to meet the requirements of the statute. In addition, after arraignment, the defendant had two different counsel, neither of whom gave timely written notice confirming the defendant's wish to testify and an address for purposes of communication. It is further undisputed that the assistant district attorney, having been given the conditional intimation that the defendant might wish to testify at the Grand Jury, made a good faith effort to ascertain the defendant's position on the matter, not having received the required written notification (see, People v. Gini, 72 A.D.2d 752, 421 N.Y.S.2d 269; People v. Spence, 139 Misc.2d 77, 526 N.Y.S.2d 747). Specifically, the assistant district attorney attempted to contact the defendant's second trial counsel, but her messages were not returned. In addition, when the third trial counsel for the defendant spoke to the assistant district attorney, he implicitly, if not expressly, waived his client's right to testify by telling the assistant district attorney to "do what you had to do". Under these circumstances, we find that the defendant did not preserve his right to testify at the Grand Jury.
The defendant's further contention that the indictment failed to sufficiently specify the time the crimes were committed is not preserved for appellate review (see, CPL 470.05; People v. Soto, 44 N.Y.2d 683, 405 N.Y.S.2d 434, 376 N.E.2d 907) and is, in any event, without merit (see, People v. Morris, 61 N.Y.2d 290, 473 N.Y.S.2d 769, 461 N.E.2d 1256).
However, we do find merit to the defendant's claim that the trial court improperly admitted into evidence the complainant's testimony concerning certain uncharged acts of sexual abuse and rape.
The evidence adduced at trial reveals that the complainant was the defendant's "stepdaughter", the child of the woman with whom the defendant lived, though they were not married, since the complainant was one year old. The family moved from California to New York when the complainant was about six years old. The offenses charged in the indictment were alleged to have occurred when the complainant was 15 to 16 years old.
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People v. Harris
...of the complaining witness's credibility [is not] one of the recognized exceptions to the Molineux rule” ( People v. Harris, 150 A.D.2d 723, 725, 541 N.Y.S.2d 593). This error does not represent some technical violation of timing, since by permitting this preemptive bolstering, the court ef......
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