People v. Passenger

• Decision Date: 08 August 1991
• Citation: 175 A.D.2d 944,572 N.Y.S.2d 972
• Parties: The PEOPLE of the State of New York, Respondent, v. James H. PASSENGER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 972

572 N.Y.S.2d 972

175 A.D.2d 944

The PEOPLE of the State of New York, Respondent, v. James H. PASSENGER, Appellant.

Supreme Court, Appellate Division Third Department.

Aug. 8, 1991.

Biscone & Neri (John T. Biscone, of counsel), Albany, for appellant.

Sol Greenberg, Dist. Atty. (George H. Barber, of counsel), Albany, for respondent.

Before CASEY, J.P., and YESAWICH, MERCURE, CREW and HARVEY, JJ.

YESAWICH, Justice.

Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered October 6, 1987, upon a verdict convicting defendant of two counts of the crime of sodomy in the first degree.

Defendant was indicted on two counts of violating Penal Law § 130.50(1) for forcing his 12-year-old daughter to perform oral sodomy. Arrested by the State Police, defendant allegedly confessed to one such act. County Court denied defendant's motion to have a psychiatric examination of the child and, pursuant to CPL 60.42, precluded defendant from introducing at trial any evidence regarding similar accusations that the child had assertedly made against her foster caretakers both before and after the particular incidents giving rise to the charges filed against defendant. On the ground that it lacked relevancy, defendant was also prohibited from introducing testimony that the child had a morbid or abnormal sexual interest and that she had been exposed to her mother's promiscuous lifestyle.

A jury found defendant guilty on both counts of the indictment and County Court imposed concurrent prison sentences of 8 1/3 to 25 years, the longest permitted by statute (see, Penal Law § 70.00[2][b]. On appeal, defendant's principal contention is that County Court abused its discretion under CPL 60.42(5), by refusing to receive the proffered testimony. We disagree.

Initially, we note that defendant offers sparse New York ¹ authority for his argument that a trial court has the power to order a victim to submit to psychiatric testing (compare People v. Griffin, 138 Misc.2d 279, 282-285, 524 N.Y.S.2d 153, with People v. Souvenir, 83 Misc.2d 1038, 1040, 373 N.Y.S.2d 824; see generally, Annotation, Necessity or Permissibility of Mental Examination to Determine Competency or Credibility of Complainant in Sexual Offense Prosecution, 45 ALR4th 310). Social and legal considerations weigh heavily against a procedure which puts victims in sex abuse cases on trial. "For example, a psychiatric examination may seriously impinge on a witness' right to privacy; * * * the examination itself could serve as a tool of harassment; and the impact of all these considerations may well deter the victim * * * from lodging any complaint at all" (United Stated v. Benn, 476 F.2d 1127, 1131; accord, People v. Lowe, 96 Misc.2d 33, 38, 408 N.Y.S.2d 873). But, even if the court had such power (but see, Cal Penal Code § 1112 [Deering 1991], we cannot say that the refusal to wield it in this instance constituted an abuse of discretion (cf., People v. Freshley, 87 A.D.2d 104, 112, 451 N.Y.S.2d 73). In the absence of compelling proof of mental or emotional instability, there is no justification for granting defendant's request. And, as for defendant's parallel argument that the failure to order the hearing violated his constitutional right under the 6th Amendment to confront his accuser, that has been invariably rejected (see, Annotation, Necessity or Permissibility of Mental Examination to Determine Competency or Credibility of complainant in Sexual Offense Prosecution, 45 ALR4th 310, § 5 [and cases cited therein].

Nor were County Court's challenged evidentiary rulings erroneous as a matter of law. While proof that the child made prior false complaints might cast substantial doubt on the validity of the charges in this case (see, People v. Harris, 132 A.D.2d 940, 941, 518 N.Y.S.2d 269), other than defense counsel's suggestion that the child had a proclivity to make sexual charges, there was no proof that these earlier complaints were false or suggested a pattern of deceit (see, People v. Mandel, 48 N.Y.2d 952, 953, 425 N.Y.S.2d 63, 401 N.E.2d 185, appeal dismissed, cert. denied 446 U.S. 949, 100 S.Ct. 2913, 64 L.Ed.2d 805; People v. Lippert, 138 A.D.2d 770, 771, 525 N.Y.S.2d 390; compare, People v. Harris, supra).

Although such complaints do...