People v. Lewis

• Decision Date: 26 March 1987
• Citation: 506 N.E.2d 915,69 N.Y.2d 321,514 N.Y.S.2d 205
• Parties: , 506 N.E.2d 915 The PEOPLE of the State of New York, Respondent, v. Lushington LEWIS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 205

514 N.Y.S.2d 205

69 N.Y.2d 321, 506 N.E.2d 915

The PEOPLE of the State of New York, Respondent, v.Lushington LEWIS, Appellant.

Court of Appeals of New York.

March 26, 1987.

B. Kay Huff and Philip L. Weinstein, New York City, for appellant.

Mario Merola, Dist. Atty. (Kevin D. McLoone and Peter D. Coddington, New York City, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Defendant has been convicted of committing incest ^* with his 14-year-old daughter and sentenced to 1 1/3 to 4 years in prison.He is now on parole pursuant to that sentence.He contends on appeal that the judgment must be reversed, first, because the People failed to produce sufficient evidence that the victim was his daughter and that he knew she was, and second, because the trial court erroneously permitted the victim to testify to prior uncharged incestuous acts he allegedly committed with her.There is sufficient evidence in the record to support the conviction but there should be a new trial because the testimony of prior uncharged crimes, not relevant to establish any element of the charged crime, was erroneously received.

I

The People introduced testimony by the victim and her mother to establish defendant's relationship and knowledge and testimony of the victim and her aunt to establish the intercourse.

Joyce Lewis, the victim's mother, testified that her daughter, Ceciel, was born out of wedlock in Kingston, Jamaica, on March 11, 1968 and that defendant was Ceciel's father.She stated that during 1967she had a sexual relationship with defendant, that she had "no other friends and men" during that time and that her last menstrual period before Ceciel's birth occurred about nine months earlier, in June 1967, when she was seeing defendant.Defendant eventually married Mrs. Lewis, in Jamaica, 10 years later.At the time of the marriage she had three children, Ceciel, who used defendant's surname, and two others, who did not.Shortly after the marriage, Mrs. Lewis left Ceciel and one other child in Jamaica in defendant's care and came to New York.In 1979, a year and a half later, defendant brought the children to New York and the family resided together in The Bronx until defendant's incarceration for this crime.In addition to this evidence of relationship and knowledge, Ceciel was also properly permitted to testify that defendant was her father(see, 2 Wharton's Criminal Evidence § 273, at 178-179[Torcia14th ed.];Richardson, Evidence§ 329, at 299-300[Prince10th ed.];cf., Ferro v. Bersani, 78 A.D.2d 1010, 433 N.Y.S.2d 666, affd., 59 N.Y.2d 899, 465 N.Y.S.2d 939, 452 N.E.2d 1267).

Ceciel also testified to intercourse with her father and this evidence was corroborated by defendant's admissions to her aunt.

Viewed in the light most favorable to the People(People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), this evidence was sufficient to support the jury's finding that defendant was the victim's father and that, knowing he was, he had sexual intercourse with her.

II

The evidence of uncharged crimes was received when Ceciel, after describing the act charged in the indictment, testified that on more than 10 prior occasions, her father had overpowered her and forced her to engage in sexual intercourse.She explained that although she had resisted some of defendant's previous sexual advances she no longer did by the time of the incident charged in the indictment because she had grown "used to" his behavior.Receipt of this evidence is assigned as error.

All relevant evidence is admissible unless its admission violates some exclusionary rule (Ando v. Woodberry, 8 N.Y.2d 165, 167, 203 N.Y.S.2d 74, 168 N.E.2d 520).Evidence is relevant if it has any " 'tendency in reason to prove any material fact' "(see, Richardson, Evidence § 4, at 2, op. cit., quoting Uniform Rules of Evidence, rule 1[2] ).Evidence of a defendant's prior uncharged crimes may have some probative value; indeed, Wigmore contends that such evidence is objectionable because juries attribute too much significance to it (1 Wigmore, Evidence § 194, at 646[3d ed.] ).For that reason it is usually excluded because it may (1) require defendant to meet a charge of which he had no notice; (2) raise collateral issues and direct the attention of the jury away from the crime charged; or (3) result in the proof of the prior offenses being taken by the jury as justifying a condemnation of the defendant irrespective of his guilt of the offenses charged (see generally, People v. Robinson, 68 N.Y.2d 541, 547, 510 N.Y.S.2d 837, 503 N.E.2d 485;People v. Ventimiglia, 52 N.Y.2d 350, 359-360, 438 N.Y.S.2d 261, 420 N.E.2d 59;People v. Allweiss, 48 N.Y.2d 40, 46-47, 421 N.Y.S.2d 341, 396 N.E.2d 735).The general rule is that evidence of prior uncharged crimes may not be offered to show defendant's bad character or his propensity towards crime but may be admitted only if the acts help establish some element of the crime under consideration or are relevant because of some recognized exception to the general rule (People v. Beam, 57 N.Y.2d 241, 250, 455 N.Y.S.2d 575, 441 N.E.2d 1093;People v. Allweiss, supra;People v. Carmack, 44 N.Y.2d 706, 405 N.Y.S.2d 446, 376 N.E.2d 919, affg.52 A.D.2d 264, 265-266, 383 N.Y.S.2d 738, 53 A.D.2d 1017).In People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286, we listed some of the matters on which evidence of uncharged crimes may be relevant--for example, to show (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan, or (5) identity of the defendant.Even when admissible for such purposes, however, the evidence may not be received unless its probative value exceeds the potential for prejudice resulting to the defendant(People v. Ely, 68 N.Y.2d 520, 529, 510 N.Y.S.2d 532, 503 N.E.2d 88;People v. McKinney, 24 N.Y.2d 180, 184, 299 N.Y.S.2d 401, 247 N.E.2d 444).In this casethe court permitted the victim's testimony of prior incestuous acts to prove defendant's "amorous design".That ruling constituted reversible error.

Although the "amorous design" exception has been widely accepted (see generally, Annotation, Evidence--Other Sexual Offenses, 167 A.L.R. 565), the courts applying it have not made entirely clear the rationale on which they do so and it has been the subject of considerable criticism (see, e.g., Greg iOther Acts of Sexual Misbehavior and Perversion as Evidence in Prosecutions for Sexual Offenses, 6 Ariz.L.Rev. 212[1965];Slough, Relevancy Unraveled, 6 U.Kan.L.Rev. 38, 51-52[1957];Note, Evidence of Defendant's Other Crimes: Admissibility in Minnesota, 37 Minn.L.Rev. 608, 614[1953] ).Apparently the exception "grew up in the context of prosecutions for sexual crimes that were consensual"(Gregg, Other Acts of Sexual Misbehavior and Perversion as Evidence in Prosecutions for Sexual Offenses, op. cit., at 219;see also, People v. Bradley, 8 A.D.2d 982, 190 N.Y.S.2d 916).It was also deemed particularly fitting to receive such evidence in cases where corroboration of the victim's testimony was required by statute and was difficult to obtain because the crime took place in private surroundings (Gregg, op. cit., at 219-220).We recognized the "amorous design" exception in People v. Thompson, 212 N.Y. 249, 106 N.E. 78, because the evidence of uncharged crimes had "a natural tendency to corroborate or supplement" the direct evidence ( id., at 251, 106 N.E. 78).We also approved the exception, without comment, in People v. Fuller, 50 N.Y.2d 628, 431 N.Y.S.2d 357, 409 N.E.2d 834.

People v. Thompson, supra, involved a prosecution for statutory rape in which the complainant was permitted to testify to other acts of intercourse she committed with the defendant subsequent to the charged crime.Although the court recognized the general rule that such evidence may not be admitted it found no error in defendant's trial.Going far beyond the facts of the case, the Thompson court stated the broad rule that "in prosecutions for adultery, seduction, statutory rape upon one under the age of consent and incest, acts of sexual intercourse between the parties prior to the offense charged in the indictment may be given in evidence" to prove the act charged (id., at 251-252, 106 N.E. 78).In support of this statement, the court relied principally on an English incest case, Director of Pub. Prosecutions v. Ball (6 Crim.App. 31[1908-1910], All ERRep. 111) but extended the exception applied there well beyond the holding of the case.It also cited two out-of-State statutory rape cases(see, Boyd v. State, 81 Ohio St. 239, 90 N.E. 355;State v. Schueller, 120 Minn. 26, 138 N.W. 937), which have since been questioned (Note, Evidence of Defendant's Other Crimes: Admissibility in Minnesota, 37 Minn.L.Rev. 608, 614).

In Ball, a brother and sister who shared the same bedroom and bed were prosecuted for incest.Because the evidence was circumstantial and ambiguous, the court applied the familiar rule that where evidence is subject to an interpretation favoring either innocence or guilt, evidence which rebuts the innocent interpretation is relevant to prove the charged crime.Accordingly, ...