People v. Hudy

CourtNew York Court of Appeals
Citation73 N.Y.2d 40,535 N.E.2d 250,538 N.Y.S.2d 197
Parties, 535 N.E.2d 250, 57 USLW 2450, 52 Ed. Law Rep. 1167 The PEOPLE of the State of New York, Respondent, v. Patrick HUDY, Appellant.
Decision Date22 December 1988

Page 197

538 N.Y.S.2d 197
73 N.Y.2d 40, 535 N.E.2d 250, 57 USLW
2450, 52 Ed. Law Rep. 1167
The PEOPLE of the State of New York, Respondent,
Patrick HUDY, Appellant.
Court of Appeals of New York.
Dec. 22, 1988.

Page 198

Thomas A. Saitta, Binghamton, for appellant.

Page 199

Gerald F. Mollen, Dist. Atty. (Kevin P. Dooley, New York City, of counsel), for respondent.

TITONE, Judge.

In 1984, the Legislature repealed the statutory provisions requiring corroboration of the victim's testimony in certain sex-crime prosecutions involving underage victims (L.1984, ch. 89, amending Penal Law former §§ 130.16, 260.11). We now hold that the Ex Post Facto Clause of the United States Constitution (U.S. Const., art. I, § 10; see also, art. I, § 9, cl. 3) does not preclude the application of this repealing enactment to prosecutions for crimes occurring before its effective date. Accordingly, in this prosecution for various sex-related crimes committed against young children, there was no constitutional impediment to applying the new statute and convicting defendant solely on the basis of the victims' testimony, even though the charged crimes occurred before the repealing legislation became effective. However, defendant's convictions must nonetheless be reversed, because two prejudicial trial errors tainted the fairness of his trial.


At the time of the alleged criminal incidents, defendant was a remedial math teacher at Glenwood Elementary School in Vestal, New York. Official concern about his classroom conduct was aroused when the younger brother of one of defendant's former pupils, Matthew L., told his mother that he had heard about a teacher who puts his hands down boys' pants. When questioned by his mother, Matthew confirmed that he had been fondled by defendant and that defendant had put his hands down other boys' pants as well.

Understandably upset by this revelation, Mrs. L. sought to confirm the allegation by contacting the mother of another boy, Jason A., who had been in defendant's class with Matthew. Matthew and Jason apparently discussed the matter on the school bus the next morning, for rumors about defendant's misconduct had already spread to the school and reached the principal's ears by the time Mrs. L. contacted him. Within a few weeks, the police became involved and launched a wider investigation into defendant's conduct. Within a three-week period, the police had obtained inculpatory evidence from eight boys, all of whom were defendant's students.

As a result, defendant was indicted on 23 counts of first degree sexual abuse and 9 counts of endangering the welfare of a child, all involving children under the age of 11. Seven of the sexual abuse counts were dismissed for either duplicity or lack of specificity. Of the remaining 25 counts, 19 involved incidents occurring between September 1983 and November 1984 and 6 involved incidents occurring between November 1984 and December 1985.

Before the commencement of trial, the trial court denied a CPL 190.65 motion by defendant to dismiss the 19 counts involving pre-November 1984 incidents on the ground that those counts were not supported by legally sufficient Grand Jury evidence. The motion was based on a defense contention that the Ex Post Facto Clause of the United States Constitution (U.S. Const., art. I, § 10, cl. 1; see also, art. I, § 9, cl. 3) foreclosed application of the recently enacted statute repealing the corroboration rules that would otherwise have governed the trial on those counts (see, L.1984, ch. 89, amending Penal Law former §§ 130.16, 260.10).

At defendant's trial, which commenced on June 17, 1986, all eight of the children who had been interviewed by the police, as well as a ninth child, testified. With one exception, each boy described, in essentially similar terms, how he had stood behind defendant's desk and had his penis touched or fondled by defendant while ostensibly receiving help with a math problem. David A., who was not himself abused, stated that, upon approaching defendant's desk, he had seen defendant with his hand down Matthew L.'s pants.

Defense counsel closely cross-examined each of the prosecution witnesses as to whether he had discussed, or heard other

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students discuss, the allegations about defendant or had heard anything about the police investigation of defendant's conduct. Additionally, each witness was questioned about his failure to report the alleged incidents at the time they occurred, as well as whether he liked or disliked defendant and whether he thought or heard that defendant was gay. These lines of questioning were intended to support the defense's primary theory, first advanced in counsel's opening statement, that a false accusation had begun when Matthew lied to his younger brother about defendant's conduct and then felt a need to adhere to his story when questioned to avoid punishment. It was the defense's position that after Matthew's story first came to light it had snowballed, quickly spreading throughout the school and inciting other students to make similar--and equally unfounded--accusations.

In response to this defense contention, the People were permitted, over vigorous objection by the defense, to call an additional witness, one Domenick M., who had been in one of defendant's classes but had moved to another State more than a year before the investigation into the present charges began. This witness testified that, like the others, he had been fondled by defendant while he was supposedly receiving help with a math problem at defendant's desk. He further testified, in contrast to the others, that he had promptly reported the matter to his grandmother, who, in turn, had reported the matter to his mother. The grandmother also was permitted to testify about Domenick M.'s statements to her, her own statements to the boy's mother and the letter that the mother had sent to defendant and the school psychologist in which she requested that the improper touching be stopped.

Although the trial court initially had misgivings about admitting this evidence of a prior uncharged crime, it ultimately determined that the testimony was admissible by analogy to the rule governing the use of a witness's prior consistent statements. In the trial court's view, Domenick M.'s testimony was admissible because it tended to rebut the defense theory that the current charges were the product of either a rumor or a conspiracy among the children who were in the school at the time Matthew L.'s accusation first surfaced.

After the prosecution rested, the defense called 12 witnesses, including defendant, several character witnesses and several teachers, who testified that they had never witnessed any sexual misconduct on defendant's part although they often had occasion to be in his classroom. Defendant was not permitted, however, to call the two investigators, Officer Barnard and Investigator Kintner, who had originally interviewed the young victims. Defense counsel unsuccessfully argued that he should be permitted to question the officers about these initial interviews so that he could elicit that the boys' testimony had been tainted by police suggestion. In support of his position, counsel pointed to the evidence that at least one of the boys, Kevin F., had first denied that any improper touching had occurred and then changed his mind after Investigator Kintner told him that the police had two witnesses who had seen such touching occur. Counsel also represented, based upon the police reports he had seen, that "there may be three or four or five other such incidents." 1 Nonetheless, the trial court concluded that the proposed questioning was relevant only to the victims' credibility and was therefore "collateral." As a consequence, the court excluded all questioning of the investigating officers, with the exception of a brief series of leading questions concerning Investigator Kintner's interview with Kevin F.

The jury found defendant guilty of all of the submitted charges. The Appellate Division, in a 3-2 decision, 132 A.D.2d 134, 521 N.Y.S.2d 811, affirmed the judgment of conviction, holding that the present law did not require corroboration of the underage victims' testimony and that the Ex Post Facto Clause of the Constitution did not foreclose application of the present law to

Page 201

charges involving crimes that had been committed before the law's enactment. A majority of the court also rejected defendant's arguments concerning the admission of Domenick M.'s testimony and the restriction of his right to question Officer Barnard and Investigator Kintner. Defendant was granted leave to take a further appeal by one of the dissenters at the Appellate Division.

I. Ex Post Facto

At the time defendant allegedly committed the crimes for which he was tried, Penal Law § 130.16 provided:

"A person shall not be convicted of consensual sodomy, or an attempt to commit same, or of any offense defined in [article 130] of which lack of consent is an element but results solely from incapacity to consent because of the alleged victim's age, mental defect, or mental incapacity * * * solely on the testimony of the alleged victim, unsupported by other evidence tending to:

"(a) Establish that an attempt was made to engage the alleged victim in sexual intercourse, deviate sexual intercourse, or sexual contact, as the case may be, at the time of the alleged occurrence; and

"(b) Connect the defendant with the commission of the offense or attempted offense."

Penal Law former § 260.11 (amended L.1984, ch. 89) applied the same corroboration requirement to the crime of endangering the welfare of a minor.

Effective November 1, 1984, the Legislature amended both statutes so that corroboration was no longer required in cases where the incapacity to consent resulted solely from the victim's age. In defendant's case, which involved 19 counts charging repeated...

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