People v. Parks

• Decision Date: 16 December 1976
• Citation: 359 N.E.2d 358,41 N.Y.2d 36,390 N.Y.S.2d 848
• Parties: , 359 N.E.2d 358 The PEOPLE of the State of New York, Respondent, v. David PARKS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 848

390 N.Y.S.2d 848

41 N.Y.2d 36, 359 N.E.2d 358

The PEOPLE of the State of New York, Respondent, v. David PARKS, Appellant.

Court of Appeals of New York.

Dec. 16, 1976.

Matthew Muraskin, James J. McDonough and Eugene Murphy, Mineola, for appellant.

Denis Dillon, Dist. Atty., Mineola (Robert N. Zausmer and William C. Donnino, Mineola, of counsel), for respondent.

JASEN, Judge.

Appellant David Parks was found guilty by a jury of the crimes of rape in the third degree and endangering the welfare of a child. The Appellate Division affirmed the judgment of conviction, without opinion. On appeal to our court, appellant argues that the petit jury which convicted him was unconstitutionally selected and that the trial court erred in permitting the mentally retarded complainant to testify under oath. An important corollary issue is whether, in assessing the complainant's testimony, the jury was properly permitted to consider the testimony of her school teacher as to the nature and degree of her mental impairment. We conclude that, under the circumstances presented, the right to trial by jury was not infringed and that acceptance of both complainant's testimony, and that of her teacher, was not an abuse of discretion. We would, therefore, affirm the order of the Appellate Division.

On June 30, 1974, the complaining witness, then 16 years old and under the statutory age of consent, was admitted to a Long Island hospital. She had been hemorrhaging for a four-day period in the aftermath of an incomplete abortion. While in the hospital, the complainant gave a statement to a policewoman. Based on the information thus received, two Nassau County police detectives went to the home of David Parks. Defendant was informed that the police were conducting an investigation and he voluntarily agreed to accompany them to the station house. Defendant was brought into a squad room and given the now standard preinterrogation warnings. (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) After being advised of the nature of the investigation, he denied having had intercourse with the complainant. The officers then explained to him that they had a complaint that they would present to the Grand Jury, that it was possible that he would be indicted for rape, that if defendant gave the police a statement he would be arrested but that he would have an opportunity to explain his version of the events to the Grand Jury. Defendant replied that he knew that the girl would get him into trouble and further, that he knew that she was under the age of consent. Defendant agreed to provide the police with a written statement. On the basis of further conversations with the defendant, a police officer prepared a typewritten statement which was subsequently read and signed by the defendant.

In the statement, defendant set forth his age (43), his place of residence, his telephone number and his place of employment. After acknowledging that he had been advised of his various constitutional rights, he admitted committing three separate acts of intercourse with the complainant between December, 1973 and March, 1974. Defendant was employed by a bus company and knew the complainant as one of the children he drove to a special work program conducted by the Board of Cooperative Educational Services (BOCES). In the statement, defendant maintained that each of the acts of intercourse resulted from the persistent sexual advances of the complaining witness.

On August 16, 1974, defendant voluntarily appeared before the Nassau County Grand Jury. He testified that he had intercourse with complainant on two occasions and gave detailed accounts of both incidents. The import of this testimony was that the sexual contact was originated by the complaining witness and her advances eventually weakened his own moral inhibitions. Defendant was indicted on two counts of rape in the third degree and two counts of endangering the welfare of a child. After conducting a pretrial hearing, the trial court found that the typewritten statement given by defendant to the police had been voluntarily made and a motion to suppress the statement was denied.

The trial was scheduled to commence on January 28, 1975. On that day, counsel for defendant made an oral motion to dismiss the jury panel on the ground that it was selected in violation of the defendant's constitutional rights. Counsel argued that former subdivision 7 of section 599 of the Judiciary Law, granting to women an automatic exemption from jury service, was in direct conflict with Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 706, decided by the Supreme Court of the United States seven days earlier. The court denied the motion, relying upon a memorandum it had received from the Administrative Judge. In a portion of this memorandum, read into the record without objection, it was stated that: 'In Nassau, according to figures supplied by the Commissioner of Jurors, 33 per cent of those available to be selected to serve and actually present as respective (sic) jurors in the central jury room on any given Monday are women. Thus, in Nassau County, women are not for all practical purposes to be excluded from jury service.'

After a luncheon recess, the selection of a trial jury commenced. In accordance with standard New York procedure (see CPL 270.05, 270.15), 12 prospective jurors were summoned to the jury box. Of these 12, 5 were female. Three were challenged peremptorily by the defense. As jury selection proceeded, the defense challenged three more women peremptorily. Ultimately, a jury of nine men and three women was selected. ¹

At the trial, the prosecution called, as its first witness, a teacher who had known the complaining witness for approximately five and a half years and who had taught the complainant for the past two and a half years. Over objection, the teacher testified that the complainant had an intelligence quotient of 73 and, academically, was functioning on a fifth grade level. Although the complainant had a chronological age of 16, her mental development approximated that of a 12- or 13-year-old child. The teacher also stated, in response to a question regarding the type of personality the complainant had, that the complainant 'is very quiet in classes, a loner, she doesn't bother with the other students very much. Doesn't have very many friends in class or at school.'

After the completion of the teacher's testimony, the People called the complainant to the witness stand. Based upon the testimony indicating that the complainant was mentally retarded, the court, at the request of defense counsel, conducted a hearing, out of the presence of the jury, to ascertain whether the complainant was competent to testify. In response to questions from the court, the complainant twice stated that she knew what it means to tell the truth and promised that, if she was sworn to tell the truth, she would tell the truth as to what had happened. On the other hand she was unable to state what would happen if the truth was not told and could not state the difference between telling the truth and telling a lie. At first, she could not recall why she was in court. She remembered speaking to an Assistant District Attorney about what happened in the past year. She stated that she knew the defendant David Parks. She did not respond to several of the questions put to her by the court. At the conclusion of its examination, the court found that the complainant was competent to be given an oath.

After being sworn, the complainant testified that she first met the defendant on the school bus and became friendly with him. She stated that, on two occasions in the winter, defendant wanted to have intercourse with her and did have intercourse with her. The record reflects that there were long pauses between several of the questions by the prosecutor and the response by the complaining witness. On cross-examination, the witness recalled testifying truthfully before the Grand Jury and stated that she knew the difference between the truth and a lie, although she was unable to state the difference. She maintained that she had told the truth on her direct examination, but admitted at one point that she did not recall everything that had happened between herself and David Parks. Although she stated that she knew what was meant by the terms 'rape' and 'intercourse', she was unable to provide an explanation. Later in her testimony, she said that she did not know the meaning of the term intercourse and that she first heard the word used by the policewoman who talked with her in the hospital. At the conclusion of her testimony, she was unable to state what the term rape means.

The balance of the People's case consisted of testimony by complainant's mother as to complainant's date of birth and age, the testimony of a police detective regarding the typewritten statement, and the reading of defendant's Grand Jury testimony. The defendant did not offer any witnesses or evidence. The jury found the defendant guilty on all counts of the indictment.

At the threshold, there is a question as to whether defendant's challenge to the jury panel was properly presented to the trial court and, thereby, preserved for appellate review. CPL 270.10 provides that the challenge to a jury panel must be made 'in writing' before selection of the jury proceeds. We have recently held that an oral motion made before selection of the jury was ineffective to preserve a challenge to the panel, even though written notice was subsequently given after the jury had been selected and the trial court was willing to consider the motion on the merits. (People v. Consolazio, 40 N.Y.2d 446, 455, 387 N.Y.S.2d 62, 67, 354 N.E.2d 801, 806.) Here, the suppression hearing, the jury selection, and the trial were all completed on a single day, January 28, 1975. Immediately before jury selection commenced, counsel for the defendant made an oral challenge...