People v. Owens

• Decision Date: 09 October 1984
• Citation: 472 N.E.2d 26,482 N.Y.S.2d 250,63 N.Y.2d 824
• Parties: , 472 N.E.2d 26 The PEOPLE of the State of New York, Appellant, v. Rodney D. OWENS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 250

482 N.Y.S.2d 250

63 N.Y.2d 824, 472 N.E.2d 26

The PEOPLE of the State of New York, Appellant, v. Rodney D. OWENS, Respondent.

Court of Appeals of New York.

Oct. 9, 1984.

Benjamin J. Bucko, Dist. Atty. (John A. Stevens and William A. Lange, Jr., Ithaca, of counsel), for appellant.

Raymond M. Schlather, Ithaca, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 97 A.D.2d 855, 469 N.Y.S.2d 249, should be reversed and the case remitted to that court for consideration of issues not reached on defendant's appeal to that court.

At defendant's rape trial, the evidence against him included the testimony of the 15-year-old victim, who had known defendant for years, and expert testimony regarding the detection of sperm on the victim's underwear. To meet this evidence, defendant applied for a ruling under CPL 60.42 in order to call 17-year-old William Blake, defendant's brother-in-law, to testify as to his sexual relations with the victim on the day of the crime or shortly before. On his attorney's advice, Blake refused to provide such testimony on the ground that it could subject him to a charge of sexual misconduct (Penal Law, § 130.20) and the prosecutor declined to ask the court to confer immunity on the witness, thereby precluding the court from doing so (CPL 50.30). During the offer of proof, the prosecutor admitted that, despite prior instruction by Blake's attorney that he not be questioned outside the presence of counsel, she had spoken to Blake alone in the hallway of the courthouse earlier that day. The only evidence in the record of the content of this conversation is the prosecutor's statement that she asked Blake why he had not mentioned his sexual relationship with the victim at the time of the Grand Jury presentation and whether he had in fact had sex with the victim on July 5, to which Blake responded negatively. Blake's only comment on the episode was that the prosecutor had not asked the latter question. The Appellate Division reversed defendant's conviction for first degree rape because, in the majority's view, the prosecutor should have requested the court to confer immunity on the proposed defense witness.

Though a prosecutor possesses the discretion to determine when to immunize a witness, this discretion is subject to review for abuse where, for example, it is exercised to prevent a defendant's access to a police informant active in the crime (People v. Sapia, 41 N.Y.2d 160, 391 N.Y.S.2d 93, 359 N.E.2d 688, cert. den. 434 U.S. 823, 98 S.Ct. 68, 54 L.Ed.2d 80), or the prosecutor "builds his case with immunized witnesses but denies the defendant a similar opportunity or affirmatively threatens the defendant's witnesses with prosecution for perjury if they give evidence favorable to the defense" (People v. Adams, 53 N.Y.2d 241, 247, 440 N.Y.S.2d 902, 423 N.E.2d 379; see, also, People v. Shapiro, 50 N.Y.2d 747, 431...