People v. Powell

• Decision Date: 06 June 1994
• Citation: 613 N.Y.S.2d 209,205 A.D.2d 561
• Parties: The PEOPLE, etc., Respondent, v. Dennis POWELL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 209

613 N.Y.S.2d 209

205 A.D.2d 561

The PEOPLE, etc., Respondent, v. Dennis POWELL, Appellant.

Supreme Court, Appellate Division Second Department.

June 6, 1994.

Philip L. Weinstein, New York City (Thomas J. Hester, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Nancy F. Talcott, and Adam S. Charnoff, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, PIZZUTO and HART, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered August 20, 1991, convicting him of rape in the first degree and sexual abuse in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the prosecution did not meaningfully respond to defense demands for discovery when it failed to disclose that its witness would testify that, upon his examination of the complainant, he concluded that her hymen was not intact. Although the prosecution's witness testified that this conclusion was indicated in a diagram of the complainant's vagina in his medical report, which, we note, was furnished to the defense counsel at least four months prior to trial, the defendant claims that the report was misleading and that the prosecution's lack of advance notice as to the meaning of the doctor's diagram violated the defendant's right to meaningful disclosure. We disagree. Under CPL 240.20(1)(c), upon a demand to produce by the defendant, "the prosecutor shall disclose to the defendant and make available for inspection, photographing, copying or testing * * * [a]ny written report or document, or portion thereof, concerning a physical or mental examination, or scientific test or experiment, relating to the criminal action or proceeding which was made by, or at the request or direction of a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial." Under these facts, it cannot be said that the prosecution violated the mandate for pretrial discovery as set forth in CPL 240.20(1)(c).

Further, the defendant contends that his conviction of rape in the first degree should be reversed because the testimony of the complainant, who was eight years old at the time of trial, was contradictory and ambiguous and did not establish that he penetrated her vagina....