People v. Hendrix

• Decision Date: 02 January 1997
• Citation: 652 N.Y.S.2d 127,235 A.D.2d 575
• Parties: The PEOPLE of the State of New York, Respondent, v. Edward HENDRIX, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 127

652 N.Y.S.2d 127

235 A.D.2d 575

The PEOPLE of the State of New York, Respondent, v. Edward HENDRIX, Jr., Appellant.

Supreme Court, Appellate Division,

Third Department.

Jan. 2, 1997.

Verner M. Ingram Jr., Potsdam, for appellant.

Jerome J. Richards, District Attorney (Ramona L. Rabeler, of counsel), Canton, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and CARPINELLO, JJ.

CASEY, Justice.

Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered April 17, 1995, upon a verdict convicting defendant of the crimes of rape in the first degree and sexual abuse in the first degree.

Following his conviction of two sex crimes, defendant was sentenced as a second felony offender to concurrent terms of imprisonment of 6 1/2 to 13 years and 3 1/2 to 7 years. Defendant appeals from the judgment based on several claimed errors which are either meritless or of insufficient gravity to warrant disturbance of his conviction and sentence.

The underlying factual pattern reveals that defendant, himself a college student at the time, met the victim, a female student residing in the same college dormitory, at an off-campus party. Following the party, defendant entered the victim's dormitory room and, while she was sleeping and unable to resist, committed the sexual acts of which he was convicted. Defendant testified that the sexual acts were consensual and the direct result of a "passionate moment" that happened in the privacy of a back bedroom of the apartment where the party was held. Defendant claims that he and the victim engaged in a passionate kiss at this time and "reconnected" later that night in her dormitory room for the consensual sexual activity, after which he gave the victim a good night kiss when she told him it was time for him to leave. The victim, on the other hand, denied ever leaving the party to go to a back bedroom with defendant and denied that any encounter in a back bedroom ever happened. After defendant rested, the prosecution called the victim's roommate, who corroborated the victim's denial that she had ever left the party to go to a back bedroom. In the course of her testimony and for the purpose of explaining why she did not return to the dormitory room she shared with the victim, the roommate told the jury that she did not drive after she had been drinking.

Defendant contends that the prosecution was charged with the knowledge that at the time she made this statement, the roommate had a charge of driving while intoxicated pending against her in the office of the same prosecutor and that the prosecutor violated CPL 240.45 in failing to inform the defense of such pending charge (CPL 240.45[1][c] ). When this same issue was raised by defendant on his postconviction motion, County Court ruled that the notice provisions of CPL 240.45 did not apply to rebuttal witnesses, such as the roommate, and applied only to witnesses called in the People's case-in-chief. County Court further stated that if any unfairness resulted from this interpretation of the statute, the remedy was with the Legislature. We find this holding proper and logical. Disclosure prior to the prosecutor's opening, as required by the statute, would not be possible in the case of rebuttal witnesses, for at that time the prosecution could not know who it would need to call in rebuttal (see, People v. Garner, 190 A.D.2d 1041, 1042, 593 N.Y.S.2d 136, lv. denied 81 N.Y.2d 885, 597 N.Y.S.2d 947, 613 N.E.2d 979).

Furthermore, pending charges against a prosecution witness do not constitute Rosario material (see, People v. Hernandez, 210 A.D.2d 535, 536, 619 N.Y.S.2d 826, lv. denied 84 N.Y.2d 1032, 623 N.Y.S.2d 188, 647 N.E.2d 460). The nondisclosure here was not intentional and reversal is not required for nondisclosure of pending charges against a witness where, as here, there is no reasonable possibility that the People's failure to disclose contributed to the verdict (see, People v. Wolf, 176 A.D.2d 1070, 1071-1072, 575 N.Y.S.2d 726, lv. denied 79 N.Y.2d 1009, 584 N.Y.S.2d 464, 594 N.E.2d 958; see also, People v. Vilardi, 76 N.Y.2d 67, 77-78, 556 N.Y.S.2d 518, 555 N.E.2d 915). At most, the nondisclosed charge could only have been used to impeach the credibility of the roommate and should not, therefore, be considered material (see, People v. Vilardi, supra ), for the omission would not create a reasonable doubt which did not otherwise exist (see, People v. Smith, 63 N.Y.2d 41, 67, 479 N.Y.S.2d 706, 468 N.E.2d 879, cert. denied 469 U.S. 1227, 105 S.Ct. 1226, 84 L.Ed.2d 364).

Defendant's next claim of error is that he was not permitted to present evidence through the testimony of his girlfriend as to the size and girth of his penis, as well as his personal dimensions...