People v. Smith

• Decision Date: 23 September 1985
• Citation: 113 A.D.2d 905,493 N.Y.S.2d 623
• Parties: The PEOPLE, etc., Respondent, v. Marvin SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 623

493 N.Y.S.2d 623

113 A.D.2d 905

The PEOPLE, etc., Respondent, v. Marvin SMITH, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 23, 1985.

Muldoon and Horgan, New Rochelle (Edward D. Loughman, III of counsel), for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Lois A. Cullen and Gerald D. Reilly of counsel), for respondent.

Before MOLLEN, P.J., and GIBBONS, RUBIN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Westchester County, rendered August 4, 1981, convicting him of rape in the first degree (three counts) and sodomy in the first degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

On this appeal the defendant contends, inter alia, that, pursuant to CPL 60.42, the trial court improperly limited defense counsel's inquiry into the complainant's alleged prior heterosexual conduct, and that this error was exacerbated by the denial of counsel's request for a sidebar conference to make an offer of proof. The complainant was an avowed lesbian who asserted that she never engaged in sexual relations with men. The defendant's position was that the sexual intercourse involved herein was consented to by the complainant.

CPL 60.42 in relevant part provides that,

"Evidence of a victim's sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense defined in article one hundred thirty of the penal law unless such evidence

* * *

* * *

"3. rebuts evidence introduced by the people of the victim's failure to engage in sexual intercourse, deviate sexual intercourse or sexual contact during a given period of time; or

* * *

* * *

"5. is determined by the court after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice."

Though the circumstances of this case justified inquiry into the complainant's alleged past heterosexual conduct, we are persuaded that defendant's rights in this regard were not abridged so as to deprive him of a fair trial. Our review of the record discloses that, in his attempt to rebut the prosecutor's evidence that the complainant never engaged in heterosexual intercourse because she was a lesbian, defense counsel was in fact permitted to inquire about her alleged heterosexual experiences, including those with one Eddie Valdez. Significantly, no witnesses, including Valdez, were called to rebut the complainant's testimony; nor does the defendant contend that he was precluded from calling witnesses to present testimony on this subject.

In addition, the defendant elicited testimony from a defense psychiatrist that certain medical records pertaining to the complainant contained information indicating that she had "heterosexual relations at 15" and that she became a lesbian at 17. The medical records were subsequently admitted into evidence in their entirety (see, People v. Mountain, 105 A.D.2d 494, 496, 481 N.Y.S.2d 449).

The defendant also contends that his indictment was defective in that it charged multiplicitous counts, i.e., that the three rapes alleged in the indictment were part and parcel of one criminal episode and should therefore have been charged as one count. We disagree with this contention because the indictment charged, and the trial evidence established, three separate and distinct rapes.

Furthermore, CPL 210.20(1)(a) provides that "[a]fter arraignment * * * the superior court may, upon motion of the defendant", dismiss the indictment or any count thereof on the ground that the indictment or count is defective. Subdivision 2 of the same section of the CPL requires that this motion be made within the time prescribed by § 255.20(1), i.e., "within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment". This latter section also requires that all pretrial motions ordinarily be included within the same set of motion papers, made returnable on the same date "unless the defendant shows that it would be prejudicial to the defense were a single judge to consider all the pre-trial motions" (CPL 255.20[2] ). Finally, the court must entertain and decide on its merits, "at any time before the end of the trial, any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified in subdivision one of this section or included within the single set of motion papers as required by subdivision two. Any other pre-trial motion made after the forty-five day period may be summarily denied, but the court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of the motion on the merits" (CPL 255.20[3] ).

The law is clear that the proper method of challenging the facial validity of an indictment is by a pretrial motion to dismiss (CPL 210.20; 210.25). When not timely raised, the issue is not preserved for appellate review (People v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656; People v. Soto, 44 N.Y.2d 683, 405 N.Y.S.2d 434, 376 N.E.2d 907). Having failed to include in his pretrial omnibus motion the claim that the indictment was facially defective because it contained multiplicitous counts, the defendant has not properly preserved this issue for appellate review (see, People v. Di Noia, 105 A.D.2d 799, 800, 481 N.Y.S.2d 738, cert. denied 471 U.S. 1022, 105 S.Ct. 2033, 85 L.Ed.2d 315), notwithstanding his objections, made belatedly and without any apparent...