69 N.Y.2d 321 | NY | 1987
OPINION OF THE COURT
Defendant has been convicted of committing incest
The People introduced testimony by the victim and her mother to establish defendant’s relationship and knowledge and testimony of the victim and her aunt to establish the intercourse.
Joyce Lewis, the victim’s mother, testified that her daughter, Ceciel, was born out of wedlock in Kingston, Jamaica, on March 11, 1968 and that defendant was Ceciel’s father. She stated that during 1967 she had a sexual relationship with defendant, that she had "no other friends and men” during that time and that her last menstrual period before Ceciel’s birth occurred about nine months earlier, in June 1967, when she was seeing defendant. Defendant eventually married Mrs. Lewis, in Jamaica, 10 years later. At the time of the marriage she had three children, Ceciel, who used defendant’s surname, and two others, who did not. Shortly after the marriage, Mrs. Lewis left Ceciel and one other child in Jamaica in defendant’s care and came to New York. In 1979, a year and a half later, defendant brought the children to New York and the family resided together in The Bronx until defendant’s incarceration for this crime. In addition to this evidence of relationship and knowledge, Ceciel was also properly permitted to testify that defendant was her father (see, 2 Wharton’s Criminal Evidence § 273, at 178-179 [Torcía 14th ed]; Richardson, Evidence § 329, at 299-300 [Prince 10th ed]; cf., Ferro v Bersani, 78 AD2d 1010, affd 59 NY2d 899).
Ceciel also testified to intercourse with her father and this evidence was corroborated by defendant’s admissions to her aunt.
Viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621), this evidence was sufficient to support the jury’s finding that defendant was the victim’s father and that, knowing he was, he had sexual intercourse with her.
II
The evidence of uncharged crimes was received when Ceciel, after describing the act charged in the indictment, testified that on more than 10 prior occasions, her father had overpowered her and forced her to engage in sexual intercourse. She explained that although she had resisted some of defendant’s previous sexual advances she no longer did by the time of the
All relevant evidence is admissible unless its admission violates some exclusionary rule (Ando v Woodberry, 8 NY2d 165, 167). Evidence is relevant if it has any " 'tendency in reason to prove any material fact’ ” (see, Richardson, Evidence § 4, at 2, op. cit., quoting Uniform Rules of Evidence, rule 1 [2]). Evidence of a defendant’s prior uncharged crimes may have some probative value; indeed, Wigmore contends that such evidence is objectionable because juries attribute too much significance to it (1 Wigmore, Evidence § 194, at 646 [3d ed]). For that reason it is usually excluded because it may (1) require defendant to meet a charge of which he had no notice; (2) raise collateral issues and direct the attention of the jury away from the crime charged; or (3) result in the proof of the prior offenses being taken by the jury as justifying a condemnation of the defendant irrespective of his guilt of the offenses charged (see generally, People v Robinson, 68 NY2d 541, 547; People v Ventimiglia, 52 NY2d 350, 359-360; People v Allweiss, 48 NY2d 40, 46-47). The general rule is that evidence of prior uncharged crimes may not be offered to show defendant’s bad character or his propensity towards crime but may be admitted only if the acts help establish some element of the crime under consideration or are relevant because of some recognized exception to the general rule (People v Beam, 57 NY2d 241, 250; People v Allweiss, supra; People v Carmack, 44 NY2d 706, affg 52 AD2d 264, 265-266, 53 AD2d 1017). In People v Molineux (168 NY 264, 293), we listed some of the matters on which evidence of uncharged crimes may be relevant — for example, to show (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan, or (5) identity of the defendant. Even when admissible for such purposes, however, the evidence may not be received unless its probative value exceeds the potential for prejudice resulting to the defendant (People v Ely, 68 NY2d 520, 529; People v McKinney, 24 NY2d 180, 184). In this case the court permitted the victim’s testimony of prior incestuous acts to prove defendant’s "amorous design”. That ruling constituted reversible error.
Although the "amorous design” exception has been widely accepted (see generally, Annotation, Evidence — Other Sexual Offenses, 167 ALR 565), the courts applying it have not made entirely clear the rationale on which they do so and it has been the subject of considerable criticism (see, e.g., Gregg,
People v Thompson (supra) involved a prosecution for statutory rape in which the complainant was permitted to testify to other acts of intercourse she committed with the defendant subsequent to the charged crime. Although the court recognized the general rule that such evidence may not be admitted it found no error in defendant’s trial. Going far beyond the facts of the case, the Thompson court stated the broad rule that "in prosecutions for adultery, seduction, statutory rape upon one under the age of consent and incest, acts of sexual intercourse between the parties prior to the offense charged in the indictment may be given in evidence” to prove the act charged (id., at 251-252). In support of this statement, the court relied principally on an English incest case, Director of Pub. Prosecutions v Ball (6 Crim App 31 [1908-1910], All ER Rep 111) but extended the exception applied there well beyond the holding of the case. It also cited two out-of-State statutory rape cases (see, Boyd v State, 81 Ohio St 239, 90 NE 355; State v Schueller, 120 Minn 26, 138 NW 937), which have since been questioned (Note, Evidence of Defendant’s Other Crimes: Admissibility in Minnesota, 37 Minn L Rev 608, 614).
In Ball, a brother and sister who shared the same bedroom and bed were prosecuted for incest. Because the evidence was circumstantial and ambiguous, the court applied the familiar rule that where evidence is subject to an interpretation favoring either innocence or guilt, evidence which rebuts the
The reasoning of those decisions requires reversal. Unlike Ball (supra), here the evidence of prior uncharged acts was not necessary to resolve an ambiguity (see also, People v Young, 99 AD2d 373). Nor was the evidence admissible for any of the other reasons generally relied upon for receiving it. Incest requires no specific intent, only the general intention to perform the prohibited act; thus, whether defendant entertained an "amorous design” toward the victim and was predisposed to engage in sexual intercourse with her, or whether the victim consented to sexual intercourse with him, was irrelevant (People v Johnson, supra; People v Bradley, 8 AD2d 982, supra). Furthermore, corroboration of the victim’s testimony was not necessary (see, Penal Law §§ 130.16, 255.30 [2]; People v Facey, 69 NY2d 836, affg 115 AD2d 11; People v Ahlers, 98 AD2d 821) but even if corroboration was required, the testimony did not, in the language of People v Thompson (212 NY 249, 251, supra), "corroborate or supplement” the victim’s testimony in any proper sense. The primary duty of
We cannot say that the error was harmless. The victim’s testimony was the principal evidence of the crime and, undoubtedly, her cumulation of defendant’s criminal acts seriously prejudiced defendant in the eyes of the jury.
Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.
Chief Judge Wachtler and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Alexander taking no part.
Order reversed, etc.
Penal Law former § 255.25 provided: "A person is guilty of incest when he marries or engages in sexual intercourse with a person whom he knows to be related to him, either legitimately or illegitimately, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece.”