People v. Mandel

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore HOPKINS; O'CONNOR; MARGETT; RABIN; MARTUSCELLO, J., and HOPKINS; RABIN; However, I agree with the views expressed by MARTUSCELLO; MARTUSCELLO; HOPKINS, J. P., concurs in the dissenting opinion of MARTUSCELLO; HOPKINS; I concur in the dissentin
Citation403 N.Y.S.2d 63,61 A.D.2d 563
PartiesThe PEOPLE, etc., Respondent, v. Gary MANDEL, Michael De Vito and Theodore Buckley, Appellants.
Decision Date20 March 1978

Goldman & Hafetz, New York City (Lawrence Hochheiser, Frederick P. Hafetz, Lawrence S. Goldman and Kenneth Aronson, New York City, of counsel), for appellant Mandel.

Murray S. Bornstein, New York City, for appellant De Vito and Andrew E. Kuchinsky, New York City, for appellant Buckley (one brief).

John J. Santucci, Dist. Atty., Kew Gardens (Annamarie Policriti and Bruce Whitney, Kew Gardens, of counsel), for respondent.

Greenbaum, Wolff & Ernst, New York City (Harriet F. Pilpel, Frederic S. Nathan, Eve W. Paul and Michael J. Burnett, New York City, of counsel), for Planned Parenthood of New York City, Inc., amicus curiae.

Elizabeth M. Schneider and Nancy Stearns, New York City (Chris Howard, Richard Greenblatt and Fannette Pollack on the brief), for Queens Women Against Rape and the New York City Chapter of the National Organization for Women, amici curiae.


O'CONNOR, Justice.

The judgments appealed from are reversed, on the law, and a new trial is ordered.

The defendants were indicted for the crimes of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree and assault in the second degree. Although the alleged crimes occurred on April 4, 1975, the trial did not commence until October 21, 1975. The trial court determined that the provisions of CPL 60.42 (L. 1975, ch. 230, eff. Sept. 1, 1975) were applicable to the trial of this case. CPL 60.42 provides as follows:

" § 60.42 Rules of evidence; admissibility of evidence of victim's sexual conduct in sex offense cases

Evidence of a victim's sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense defined in article one hundred thirty of the penal law unless such evidence:

1. proves or tends to prove specific instances of the victim's prior sexual conduct with the accused; or

2. proves or tends to prove that the victim has been convicted of an offense under section 230.00 of the penal law within three years prior to the sex offense which is the subject of the prosecution; or

3. rebuts evidence introduced by the people of the victim's failure to engage in sexual intercourse, deviate sexual intercourse or sexual contact during a given period of time; or

4. rebuts evidence introduced by the people which proves or tends to prove that the accused is the cause of pregnancy or disease of the victim, or the source of semen found in the victim; or

5. is determined by the court after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice."

Pursuant to CPL 60.42, the defendants made an offer of proof concerning the complaint's prior sexual conduct. After a hearing and a review of the various exhibits submitted by defendants, the trial court ruled that subdivisions 1 through 4 were not applicable and that the evidence offered was not "relevant and admissible in the interests of justice" under subdivision 5. Evidence of the complainant's prior sexual conduct was therefore barred at the trial.

Defendants contend that application of CPL 60.42 violated section 10 of article I of the United States Constitution, which prohibits the Legislature from passing an ex post facto law. In Beazell v. Ohio, 269 U.S. 167, 170, 46 S.Ct. 68, 69, 70 L.Ed. 216, which involved a statutory change making it more difficult for two persons jointly indicted to receive separate trials, the Supreme Court held that: "it is now well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited." In People v. Nival (33 N.Y.2d 391, 353 N.Y.S.2d 409, 308 N.E.2d 883) the Court of Appeals held that application of CPL 60.25 to a crime committed prior to the effective date of that statute did not violate the ex post facto clause. CPL 60.25 newly provided that where a witness cannot make an in-court identification, but has on a previous occasion identified the defendant, any other witness may then establish that the defendant is the same person that the eyewitness identified on the previous occasion. Although CPL 60.42 restricts, to some extent,

a defendant's ability to attack the credibility of a complaining witness, the statute is not an impermissible ex post facto law (People v. Patno, 55 A.D.2d 965, 390 N.Y.S.2d 468; People v. Conyers, 86 Misc.2d 754, 382 N.Y.S.2d 437). The limitation does not deprive the accused of a defense and certainly does not involve as substantive a right as that involved in People v. Nival (supra ). Furthermore, if the limitation were to raise substantial ex post facto concerns in any particular case, such problems would be obviated by subdivision 5 thereof, which permits the admission of evidence of a complainant's prior sexual conduct where the "interests of justice" would thus be served

Defendants assert that CPL 60.42 permits a trial court to prohibit the admission of relevant evidence in order to protect the privacy of a complaining witness. They contend that this prohibition violates their right to a fair trial under the Sixth and Fourteenth Amendments and that CPL 60.42 is therefore unconstitutional.

CPL 60.42 represents a legislative determination that evidence of a complainant's past sex life "seldom elicits testimony relevant to the issues of the victim's consent on credibility, but serves only to harass the alleged victim and confuse the jurors. Focusing upon the immaterial issue of a victim's chastity tends to demean the witness, discourages the prosecution of meritorious cases, and leads to acquittals of guilty defendants" (Memorandum of Assemblyman Stanley Fink, N.Y.Legis.Ann., 1975, pp. 47-48). CPL 60.42 codifies, in the trial of sex offenses, what has been the prevailing view in the trial of all other offenses, i. e., that "(t)here is a duty to protect him from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him" (see Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624; cf. People v. Fiore, 34 N.Y.2d 81, 356 N.Y.S.2d 38, 312 N.E.2d 174; People v. McKinney, 24 N.Y.2d 180, 299 N.Y.S. 401, 247 N.E.2d 244; Thayer, Preliminary Treatise on Evidence, p. 266; McCormick on Evidence (2d ed.), § 185).

The exclusion of evidence of a complainant's prior sexual conduct has been upheld in other jurisdictions upon the very grounds relied upon by the Legislature in enacting CPL 60.42, to wit, that such evidence is not relevant and is highly prejudicial (see People v. Blackburn, 56 Cal.App.3d 685, 128 Cal.Rptr. 864; State v. Geer, 13 Wash.App. 71, 533 P.2d 389; Lynn v. State, 231 Ga. 559, 203 S.E.2d 221). CPL 60.42 serves the salutary purpose of restricting the unfair and irrelevant cross-examination of the victims of sexual crimes. By including subdivision 5 within the statute, the Legislature has, however, recognized that there may be exceptions to this new rule and that there may indeed be times when a victim's sexual conduct is highly relevant and that evidence of such conduct should therefore be admissible. The exception, therefore, affords a defendant the opportunity to demonstrate that the victim's sexual conduct is relevant and to subsequently confront the victim with such evidence (cf. People v. Conyers, 86 Misc.2d 754, 382 N.Y.S.2d 437, supra ).

Although we find that CPL 60.42 is constitutional, we are constrained to reverse the judgments because the evidence offered by defendants, but excluded by the trial court, was of substantial probative value and was not offered primarily to demean or harass the victim. Such evidence directly involved not only the complainant's credibility and her mental and emotional condition, but, to a marked degree, her ability to perceive and recall past events. The relevance of the evidence therefore clearly outweighed its possible prejudicial implications. The basic essence of a fair trial is that a defendant be permitted "to probe into the influence of possible bias in the testimony of a crucial identification witness" (Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1112, 39 L.Ed.2d 347; Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624, supra.) If the defense be not afforded the full and proper right of confrontation, it is difficult indeed, if not impossible, to determine the truth; and a trial, as we all so often say, is but a search for the truth.

Pursuant to the exception set forth in subdivision 5 of CPL 60.42, the defendants made an offer of proof at the outset of the trial. The offer proposed the admission of evidence of: three similar false rape complaints previously made by the complainant; certain records of South Oaks Hospital prepared in the regular course of business while complainant was a patient at that hospital from April 11, 1972 to May 22, 1972; statements by three males, two 18 years of age and one 31 years of age, that, inter alia, in sexual situations with complainant she had refused to let them touch her breasts; a statement by an 18-year-old male that he had seen complainant's father brutally beat her with his naked fists; a photograph in "Mixer" magazine allegedly of complainant, which accompanied a solicitation for women to participate in multiple and unusual sorts of sexual activity; and the minutes of a preliminary hearing held on May 12, 1975.

The trial court held a brief hearing out of the presence of the jury and, at the request of defense counsel, who were hesitant to open their files to ...

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