People v. Westfall

• Decision Date: 27 October 1983
• Parties: The PEOPLE of the State of New York, Respondent, v. Fay E. WESTFALL, Jr., Appellant. The PEOPLE of the State of New York, Respondent, v. Lawrence WESTFALL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 162

469 N.Y.S.2d 162

95 A.D.2d 581

The PEOPLE of the State of New York, Respondent, v. Fay E. WESTFALL, Jr., Appellant.

The PEOPLE of the State of New York, Respondent, v. Lawrence WESTFALL, Appellant.

Supreme Court, Appellate Division,

Third Department.

Oct. 27, 1983.

Nelson E. Roth, Ithaca (Steven D. Clymer and Rebecca S. Ringer, Ithaca, of counsel), for Fay E. Westfall, Jr., appellant.

Ralph W. Nash, Ithaca, for Lawrence Westfall, appellant.

Benjamin J. Bucko, Dist. Atty., Ithaca (William A. Lange, Jr., Ithaca, of counsel), for respondent.

Before KANE, J.P., and MAIN, CASEY, MIKOLL and YESAWICH, JJ.

OPINION FOR AFFIRMANCE

CASEY, Justice.

Defendants were convicted of crimes that occurred on March 22, 1981 shortly after 11:30 P.M. in the trailer home of the complainant, an employee and girlfriend of defendants' father, the owner of the trailer. Defendants claimed they had gone there to obtain a tool box which was needed for their employment. Defendant Fay Westfall admitted having attempted sexual intercourse with the complainant after leading her to her bedroom that night, but claimed it was consensual. However, he stated that he was unable to complete the act because he had been drinking. Defendant Lawrence Westfall denied any involvement in any sexual activity and denied observing any of his brother's conduct, admitting only that he carried the tool box to the car.

On the other hand, the victim, whose version of the events was obviously believed by the jury, testified to admitting defendants to the trailer because she had previously known them; to having served them beer; to having been forced into the bedroom; to having had her clothing forcibly removed; to having been threatened and prodded with a knife; to having her legs held by defendant Lawrence Westfall, who was not only present, but was armed at the time with a length of television antenna wire, while defendant Fay Westfall forced her into sexual intercourse about three times; to having been slapped by Fay Westfall when she refused to perform fellatio; and to having had a vibrator inserted into her vagina by Lawrence Westfall.

On this appeal, defendants advance several reasons for reversal of their convictions, the most important of which is the interpretation and application of CPL 60.42, which pertinently provides:

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:

1. proves or tends to prove specific instances of the victim's prior sexual conduct with the accused * * *.

This enactment reflects a legislative decision to end the introduction into evidence of prior sexual conduct of the victim unless it falls within the statutory exceptions, since such evidence was seldom relevant to the issue of consent and credibility and served "only to harass the alleged victim and confuse the jurors" (Memorandum of Assemblyman Fink, N.Y.Legis.Ann., 1975, p. 48).

Defendants claim that the exclusion of evidence offered by them that attempted to show prior sexual acts between the victim and defendant Lawrence Westfall and the victim and defendants' father was reversible error because such evidence had a possible bearing on the credibility of the victim on whose testimony their convictions almost entirely depended. Defendants interpret the statutory exception to mandate the admission into evidence of the prior sexual conduct between defendant Lawrence Westfall and the victim. The hearing held pursuant to CPL 60.42 revealed that this conduct consisted of prior sexual intercourse between defendant Lawrence Westfall and the victim in November, 1979. The trial court ruled it inadmissible. We do not construe the statutory exception to mandate the introduction of such testimony and we do not believe that the threshold test of relevancy of such testimony should be disregarded. The exceptions of subdivisions 1 through 5 of CPL 60.42 may thus be viewed as denominating instances "when such evidence may, by ruling of the trial judge, become admissible" (Bellacosa, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A, CPL 60.42, p. 565). We so conclude because the relevance of the victim's previous sexual conduct with the accused will generally bear on the issue of consent (see Ordover, Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character for Chastity, 63 Cornell L.Rev. 90, 117).

However, the consent of the victim is not an issue in this case in regard to defendant Lawrence Westfall since he denied any sexual conduct or other participation in the crimes, and defendant Fay Westfall denied any previous sexual relations with the complainant-victim (see State v. Williams, 128 Ariz. 453, 626 P.2d 617). It is obvious that evidence of the prior sexual relations of the victim with one of the defendants is not relevant on the issue of whether sexual relations with the codefendant were consensual. Therefore, if this were the only asserted relevance of the prior sexual conduct between the victim and Lawrence Westfall, no confrontation or compulsory process rights would be involved, as there is no constitutional right to introduce irrelevant and inflammatory evidence (People v. Mandel, 61 A.D.2d 563, 566, 403 N.Y.S.2d 63, revd. on other grounds 48 N.Y.2d 952, 425 N.Y.S.2d 63, 401 N.E.2d 185, app. dsmd. 446 U.S. 949, 100 S.Ct. 2913, 64 L.Ed.2d 805, reh. den. 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138).

Defendants further maintain, however, that the evidence is relevant other than on the issue of consent. They contend that the exclusion of such testimony by the trial court added undue significance to the prosecutor's remark...