People v. White

• Decision Date: 06 May 1999
• Citation: 690 N.Y.S.2d 300,261 A.D.2d 653
• Parties: 1999 N.Y. Slip Op. 4045 The PEOPLE of the State of New York, Respondent, v. Donald E. WHITE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 300

690 N.Y.S.2d 300

1999 N.Y. Slip Op. 4045

The PEOPLE of the State of New York, Respondent, v. Donald E. WHITE, Appellant.

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

May 6, 1999.

O'Connell & Aronowitz, P.C. (Gloria Herron Arthur of counsel), Albany, for appellant.

James E. Conboy, District Attorney (John N. Clo of counsel), Fonda, for respondent.

Before: CARDONA, P.J., MIKOLL, YESAWICH JR., SPAIN and GRAFFEO, JJ.

CARDONA, P.J.

Appeal from a judgment of the County Court of Montgomery County (Sise, J.), rendered March 10, 1997, upon a verdict convicting defendant of the crimes of rape in the second degree and sodomy in the second degree.

Defendant was indicted for rape in the second degree and sodomy in the second degree after having allegedly engaged in sexual acts with an 11-year-old girl (hereinafter the victim). The victim was the daughter of defendant's former girlfriend (hereinafter the mother) and accompanied defendant on a road trip in July 1995. The incidents occurred during that road trip in the back of defendant's tractor trailer. According to the victim, defendant inserted his penis into her mouth and vagina. Following trial, a jury convicted defendant of both crimes and he was sentenced to consecutive prison terms of 2 1/3 to 7 years on each. Defendant appeals.

Defendant alleges that County Court erred in refusing to suppress his written statement to State Police Investigator Matthew Zell on May 8, 1996. It is settled that "the voluntariness of a statement is generally 'a question of fact to be determined from the totality of the circumstances' " (People v. Miller, 244 A.D.2d 828, 828, 666 N.Y.S.2d 281, quoting Matter of James OO., 234 A.D.2d 822, 823, 652 N.Y.S.2d 783, lv. denied 89 N.Y.2d 812, 657 N.Y.S.2d 405, 679 N.E.2d 644; see, People v. Williamson, 245 A.D.2d 966, 967, 667 N.Y.S.2d 114, lv. denied 91 N.Y.2d 946, 671 N.Y.S.2d 726, 694 N.E.2d 895). The burden is on the prosecution to prove beyond a reasonable doubt that the statement was voluntary (see, People v. Anderson, 42 N.Y.2d 35, 38, 396 N.Y.S.2d 625, 364 N.E.2d 1318; People v. Miller, supra, at 828, 666 N.Y.S.2d 281). Notably, "the factual findings of the suppression court are entitled to great weight and will not be set aside unless clearly erroneous" (People v. Gagliardi, 232 A.D.2d 879, 880, 649 N.Y.S.2d 214).

In this case, the transcript of the Huntley hearing reveals that defendant went to Zell's office on May 7, 1996 at approximately 9:00 P.M. in response to a telephone call in which Zell represented that he was investigating some truck thefts. Zell testified that after defendant arrived and answered some preliminary questions, he advised defendant of his Miranda rights and indicated he was investigating allegations made by the victim. According to Zell, defendant proceeded to speak with him and did not request an attorney. Zell denied the use of any threats or force in speaking with defendant. He stated that he prepared a typewritten statement based upon his conversation with defendant and completed it at approximately 1:15 A.M. on May 8, 1996. Zell testified that defendant voluntarily signed the statement which contained a written waiver of defendant's Miranda rights.

Defendant denied that Zell gave him Miranda warnings at any time during the interview but did, however, admit that Zell did not threaten him or force him to give the statement. He testified that he did not read the written statement but signed and initialed it because Zell was a police officer and he assumed that Zell would accurately transcribe their conversation. Defendant denied the details of the statement. Inasmuch as County Court was free to credit Zell's testimony over defendant's in regard to the administration of Miranda warnings and there is no evidence to suggest that defendant was coerced into signing the inculpatory written statement, we find no error in County Court's refusal to suppress the statement.

Defendant further asserts that County Court erred in applying CPL 60.42 to preclude him from cross-examining certain prosecution witnesses concerning the victim's contraction of a sexually transmitted disease. In particular, he contends that because the victim's accusations against him first came to light during a medical examination in which it was discovered that the victim had syphilis, he should have been given the opportunity to elicit further testimony relating to the circumstances of this disclosure to establish that the victim fabricated the charges.

CPL 60.42, known as the "Rape Shield Law", provides that evidence of a victim's sexual conduct is not admissible in the prosecution of a sexual offense unless the evidence:

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

2. proves or tends to prove that the victim has been convicted of an offense under section 230.00 of the penal law within three years * * *; or 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

4. rebuts evidence introduced by the people which proves or tends to prove that the accused is the cause of pregnancy or disease of the victim, or the source of semen found in the victim; 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.

The first three exceptions by their terms do not apply to the facts in the case at hand. The fourth exception is likewise inapplicable inasmuch as the prosecution specifically advised the court that it had no intention of offering proof that defendant infected the victim with syphilis.

While County Court had the discretion to admit the evidence under the fifth exception "in the interests of justice" (CPL 60.42 ), we cannot say that the court abused its discretion in declining to do so. After admonishing defense counsel for mentioning in his opening statement that the victim had syphilis, County Court provided defense counsel the opportunity to make an offer of proof demonstrating why evidence of syphilis should be admissible. In response, defense counsel indicated that the victim's statement that she was molested by defendant was made in the context of a gynecological examination which revealed that she had syphilis, thus raising the inference that defendant gave her the disease. He further noted that because there was proof demonstrating that the victim was incorrect about defendant infecting her with syphilis, it could be inferred that the victim falsely implicated defendant in the crimes charged. While defendant argues on appeal that such proof is also relevant because the victim had a motive to falsely accuse defendant in order to protect her 12-year-old boyfriend from whom she contracted syphilis, this argument was not specifically made to County Court. In any event, given the prejudicial nature of the evidence, we cannot say that County Court abused its discretion in ruling such evidence inadmissible under CPL 60.42.

We next address defendant's claims that the verdict is not supported by legally sufficient evidence or, alternatively, is against the weight of the evidence. The standard for evaluating legal sufficiency...