People v. Woods

• Decision Date: 27 March 2009
• Docket Number: KA 07-02187
• Citation: 60 A.D.3d 1493,876 N.Y.S.2d 285,2009 NY Slip Op 02438
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANTHONY WOODS, Appellant.
• Court: New York Supreme Court — Appellate Division

60 A.D.3d 1493

876 N.Y.S.2d 285

2009 NY Slip Op 02438

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANTHONY WOODS, Appellant.

KA 07-02187

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided March 27, 2009.

Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.), rendered September 21, 2007. The judgment convicted defendant, upon a jury verdict, of criminal sexual act in the first degree (two counts), rape in the first degree, and attempted criminal sexual act in the first degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of two counts of criminal sexual act in the first degree (Penal Law § 130.50 [1]), rape in the first degree (§ 130.35 [1]), and attempted criminal sexual act in the first degree (§§ 110.00, 130.50 [1]). County Court (Michael F. Pietruszka, J.) did not err in denying the request of defendant for a judicial subpoena duces tecum to enable him to obtain the victim's medical records. Defendant failed to make the requisite factual showing that it was reasonably likely that the records would contain information bearing upon the victim's credibility (see People v Chatman, 186 AD2d 1004 [1992], lv denied 81 NY2d 761 [1992]).

Contrary to the further contention of defendant, Supreme Court (Deborah A. Haendiges, J.) did not err in denying his motion for a mistrial based upon the victim's testimony, which defendant characterizes as a reference to an "uncharged sexual incident." The record establishes that the victim made no reference to forcible compulsion by defendant and, in any event, the court gave a curative instruction that the jury is presumed to have followed (see People v Cruz, 272 AD2d 922, 923 [2000], affd 96 NY2d 857 [2001]).

The court also did not err in refusing to redact portions of defendant's statements to the police in which defendant allegedly made references to his past criminal history. The record establishes that there was in fact no reference by defendant to his past criminal history but, rather, his reference was to the rape for which he was under arrest at the time.

We reject defendant's further contention that the court abused its discretion in refusing to instruct the jury that evidence of the victim's previous sexual conduct with defendant could be deemed evidence that the sexual activity between defendant and the victim in this case was consensual. The court properly permitted defendant to offer such evidence (see CPL 60.42), and defense counsel on summation referred extensively to that evidence. As the Court of Appeals has noted, courts "have long presumed that jurors have `sufficient intelligence' to make elementary logical inferences presupposed by the language of a charge, and hence that defendant...