People v. Serrano-Gonzalez

• Decision Date: 05 January 2017
• Citation: 146 A.D.3d 1013,2017 N.Y. Slip Op. 00043,45 N.Y.S.3d 245
• Parties: The PEOPLE of the State of New York, Respondent, v. Samuel SERRANO–GONZALEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 1013

45 N.Y.S.3d 245

2017 N.Y. Slip Op. 00043

The PEOPLE of the State of New York, Respondent,

v.Samuel SERRANO–GONZALEZ, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 5, 2017.

Michael P. Mansion, Latham, for appellant, and appellant pro se.

Karen Heggen, District Attorney, Ballston Spa (Kirstin T. Foust of counsel), for respondent.

Before: McCARTHY, J.P., LYNCH, ROSE, CLARK and AARONS, JJ.

McCARTHY, J.P.

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered May 17, 2012, upon a verdict convicting defendant of the crimes of rape in the first degree and sexual abuse in the first degree.

Defendant was charged by indictment with one count of rape in the first degree, one count of sexual abuse in the first degree and one count of criminal obstruction of breathing or blood circulation. The charges stemmed from allegations that defendant threatened and choked the victim while forcibly raping her all before he continued to threaten her at knife point until she escaped and ran to a nearby police station. After a jury trial, defendant was convicted of one count of rape in the first degree and one count of sexual abuse in the first degree. County Court sentenced defendant, as a second felony offender, to concurrent prison terms of 20 years followed by 25 years of postrelease supervision for his conviction of rape in the first degree and seven years followed by 15 years of postrelease supervision for his conviction of sexual abuse in the first degree. Defendant now appeals, and we affirm.

County Court properly allowed the victim to testify regarding her knowledge of defendant's HIV status. Defendant contends that the value of the evidence referencing his HIV status was more prejudicial than probative and that he otherwise has a constitutionally protected privacy interest that was violated by the introduction of such evidence. Defendant's HIV status was directly at issue in regard to whether he and the victim engaged in consensual intercourse. The victim testified that she and defendant had previously had a consensual sexual relationship. Thereafter, defendant was diagnosed with HIV. The victim indicated that, as a result of defendant's diagnosis, she and defendant discussed their relationship and agreed that it would thereafter be "platonic." Thus, defendant's HIV status was highly probative evidence as necessary background information regarding the victim's choice to stop having sexual intercourse with defendant. Moreover, County Court instructed the jury that defendant's HIV status could not be considered as propensity or disposition evidence in relationship to the charged crimes. Considering the foregoing, County Court did not abuse its discretion in permitting the victim's testimony on the issue (see People v. Pham., 118 A.D.3d 1159, 1161, 987 N.Y.S.2d 687 [2014], lv. denied 24 N.Y.3d 1087, 1 N.Y.S.3d 14, 25 N.E.3d 351 [2014] ; People v. Higgins, 12 A.D.3d 775, 778, 784 N.Y.S.2d 232 [2004], lv. denied 4 N.Y.3d 764, 792 N.Y.S.2d 7, 825 N.E.2d 139 [2005] ).

Further, having failed to raise to County Court the contention that he had a constitutional privacy interest that rendered such evidence inadmissible, defendant did not preserve that contention for our review (see People v. Nelson, 27 N.Y.3d 361, 367–368, 33 N.Y.S.3d 814, 53 N.E.3d 691 [2016], cert. denied ––– U.S. ––––, 137 S.Ct. 175, 196 L.Ed.2d 144 [Oct. 3, 2016] ). In any event, as the victim, rather than a state actor, provided the evidence at trial related to defendant's HIV status, defendant's constitutional privacy rights could not have been impinged upon (compare Doe v. City of NY, 15 F.3d 264, 268 [2d Cir.1994] ; see generally People v. Mendoza, 211 A.D.2d 493, 493, 621 N.Y.S.2d 553 [1995] ).

Next, County Court did not abuse its discretion in preventing defendant from introducing evidence on a collateral matter regarding the victim's statements in the aftermath of defendant's HIV diagnosis. Defendant contends that the court erred in denying his request to call one of his nurses to testify that, after the HIV diagnosis and approximately two weeks before the events leading to his convictions, the victim told the nurse that she planned to "stay together" with defendant. The victim's conversation with the nurse occurred well after the victim learned of defendant's HIV diagnosis. Thus, the victim was not under the stress of a startling event and, therefore, any statement that she made was not an excited utterance (see People v. Hansen, 290 A.D.2d 47, 54, 736 N.Y.S.2d 743 [2002], affd. 99 N.Y.2d 339, 756 N.Y.S.2d 122, 786 N.E.2d 21 [2003] ). Moreover, inasmuch as the subject statement does not address the victim's state of mind as to a future consensual sexual relationship with defendant, the court did not abuse its discretion in finding that the evidence was not admissible pursuant to the state of mind exception to the rule against hearsay (see generally People v. Aska, 91 N.Y.2d 979, 981, 674 N.Y.S.2d 271, 697 N.E.2d 172 [1998] ). Finally, as the victim was not seeking any diagnosis or treatment in having a discussion with defendant's nurse, the statement is not admissible as relevant medical treatment or diagnosis (see People v. Thomas, 282 A.D.2d 827, 828, 725 N.Y.S.2d 102 [2001], lv. denied 96 N.Y.2d 925, 732 N.Y.S.2d 642, 758 N.E.2d 668 [2001] ).

Moreover, the evidence was not admissible as impeachment evidence. "[A] party may not introduce extrinsic evidence on a collateral matter solely to impeach credibility" (People v. Alvino, 71 N.Y.2d 233, 247, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987] ). "The purpose of this rule is judicial economy, to prevent needless multiplication of issues in a case, and to insure that the jury is not confused with irrelevant evidence" (id. at 248, 525 N.Y.S.2d 7, 519 N.E.2d 808 ). "However, that general rule is not applied where the issue to which the evidence relates is a material one, that is, one that the jury must decide" (People v. Mink, 267 A.D.2d 501, 503, 699 N.Y.S.2d 742 [1999] [citation omitted], lv. denied, 94 N.Y.2d 950, 710 N.Y.S.2d 7, 731 N.E.2d 624 [2000] ). Here, the victim testified to the fact that, after defendant was diagnosed with HIV, she planned to continue to live with him and did not intend to abandon him or cut off their relationship. Nonetheless, on cross-examination, the victim denied having told the nurse that she intended to "stay together" with defendant. Defendant sought to introduce the nurse's testimony to show that the victim was "telling a lie." Assuming for the sake of argument that the phrase "stay together" could be construed as referring to a sexual relationship, defendant's impeachment efforts related to proof regarding the victim's mental state approximately two weeks before the events underlying the convictions. The jury did not need to determine the victim's mental state in the initial aftermath of defendant's diagnosis. Accordingly, County Court did not abuse its discretion in precluding defendant from attempting to impeach the victim as to that collateral issue (see People v. Olivares,

34 A.D.3d 602, 602, 824 N.Y.S.2d 172 [2006], lv. denied 9 N.Y.3d 879, 842 N.Y.S.2d 791, 874 N.E.2d 758 [2007] ; People v. Richardson, 28 A.D.3d 1002, 1004, 813 N.Y.S.2d 581 [2006], lv. denied 7 N.Y.3d 817, 822 N.Y.S.2d 492, 855 N.E.2d 808 [2006] ; People v. Alexander, 16 A.D.3d 515, 515–516, 792 N.Y.S.2d 109 [2005], lv. denied 5 N.Y.3d 758, 801 N.Y.S.2d 253, 834 N.E.2d 1263 [2005] ). In any event, any error in failing to admit such evidence would be harmless. Defendant testified to his recollection of the victim's statements to the nurse, and the victim's testimony regarding the rape and abuse was otherwise corroborated by medical¹ and DNA evidence (see People v. Maxam, 135 A.D.3d 1160, 1162, 23 N.Y.S.3d 700 [2016], lv. denied 27 N.Y.3d 1135, 39 N.Y.S.3d 117, 61 N.E.3d 516 [2016] ).

In addition, County Court properly allowed for the redaction of portions of a DNA test of the victim's vulvar swab referring to DNA of an additional donor not linked to defendant and properly precluded defendant from calling a DNA expert to testify regarding the additional donor evidence. Defendant admitted, when arguing for the admission of the evidence, that he wanted to use it to examine the victim as to her sexual history with persons other than defendant. Introducing such evidence for that purpose "[falls] squarely within the ambit of the Rape Shield Law, which generally prohibits ‘[e]vidence of a victim's sexual conduct’ in a prosecution for a sex offense under Penal Law article 130 (CPL 60.42 )" (People v. Halter, 19 N.Y.3d 1046, 1049, 955 N.Y.S.2d 809, 979 N.E.2d 1135 [2012] ). Accordingly, County Court properly precluded that evidence (see People v. Halter, 19 N.Y.3d at 1049, 955 N.Y.S.2d 809, 979 N.E.2d 1135 ; People v. Mitchell, 10 A.D.3d 554, 555, 782 N.Y.S.2d 45 [2004], lv. denied 3 N.Y.3d 759, 788 N.Y.S.2d 675, 821 N.E.2d 980 [2004] ).

County Court properly granted the People's motion to redact references to the victim's past instances of self-inflicted and defendant-inflicted cutting in her medical records. A victim's past psychiatric and medical history has been properly deemed inadmissible in instances where the records are not "probative of the victim's veracity or any tendency to falsely report sex crimes" (People v. Murphy, 188 A.D.2d 742, 744, 591 N.Y.S.2d 860 [1992], lv. denied 81 N.Y.2d 890, 597 N.Y.S.2d 951, 613 N.E.2d 983 [1993] ; see People...