People v. Lippert

• Decision Date: 03 March 1988
• Citation: 525 N.Y.S.2d 390,138 A.D.2d 770
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael W. LIPPERT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 390

525 N.Y.S.2d 390

138 A.D.2d 770

The PEOPLE of the State of New York, Respondent, v. Michael W. LIPPERT, Appellant.

Supreme Court, Appellate Division,

Third Department.

March 3, 1988.

Skadden, Arps, Slate, Meagher & Flom (David E. Bamberger, of counsel), New York City, for appellant.

Gerald F. Mollen, Broome County Dist. Atty. (Kevin P. Dooley, of counsel), Binghamton, for respondent.

Before MAHONEY, P.J., and CASEY, YESAWICH and HARVEY, JJ.

CASEY, Justice.

Appeal from a judgment of the County Court of Broome County (Monserrate, J.), rendered June 29, 1984, upon a verdict convicting defendant of the crimes of rape in the first degree (two counts), attempted sodomy in the first degree and criminal trespass in the second degree.

At about 5:00 A.M. on March 10, 1984, the victim was awakened by defendant's hand being placed over her mouth. The victim was then in her own bedroom in an apartment which she shared with a girl friend, the girl friend's brother and his three children. Defendant had also been staying at the apartment for several days prior to this incident. When she awoke, the victim tried to pull defendant's hand away from her mouth, and when she attempted to scream, defendant told her he would hurt her if she did. Defendant ordered her to remove her pajamas. In an attempt to deter him, the victim stated that she had "an infection", but defendant continued to undress and committed an act of sexual intercourse. The victim was then permitted to put her pajamas back on and defendant sat on the edge of her bed talking to her for 15 to 30 minutes. Once again, she was ordered to remove her pajamas and was told not to scream under a threat of death. She was then sodomized and raped a second time. Some discussion ensued as to the victim's intent to report the incident and defendant then left her room. The victim climbed out of her bedroom window and subsequently reported the incident to the police.

Later that evening, defendant voluntarily contacted the police and went to the police station, where he was placed in an interview room and given Miranda warnings. Defendant signed a statement waiving his right to counsel and agreed to talk to the police about the victim's complaint. Although defendant admitted the sexual intercourse, he claimed that the victim consented. At this point, the police officer informed defendant that the intercourse could not have been consensual since the victim was a lesbian and would not have consented. The police admit that this statement was a ploy and that they had no knowledge of the victim's sexual proclivity in that regard. Defendant then changed his story and admitted that the act occurred without the victim's consent. Defendant's statement was typed and signed by him, and he was arrested and jailed. Since the statement contained no mention of an act of sodomy, Miranda warnings were readministered the following day and defendant admitted that an act of sodomy had occurred. This subsequent statement was then reduced to writing. Defendant was indicted on two counts of rape in the first degree, one count of sodomy in the first degree and one count of burglary in the second degree. Following a jury trial, he was convicted of both counts of rape in the first degree, attempted sodomy in the first degree and criminal trespass in the second degree.

On this appeal, defendant initially complains of undue restrictions placed on his cross-examination of the victim. County Court denied defendant's motion to permit cross-examination of the victim about two prior separate incidents of rape within 15 months preceding the instant crimes. Defendant contends that CPL 60.42 does not apply to the proposed cross-examination since prior claims of rape do not constitute evidence of the victim's own sexual conduct. Although prior alleged rape...