People v. NicholsonPeople v. Nicholson
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered September 22, 2009. The judgment convicted defendant, upon a jury verdict, of course of sexual conduct against a child in the first degree.
It is hereby ordered that the appeal from the judgment insofar as it imposed sentence is dismissed and the judgment is otherwise affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of course of sexual conduct against a child in the first dеgree (
Defendant next contends in appeal No. 1 that the court erred in admitting the testimony of an expert with respect to child sexual abuse аccomodation syndrome (CSAAS) because the issue of delayed victim disclosure was not beyond the ken of the jurors in this case. It is well settled that “[e]xpert testimony
Defendant further contends in appeal No. 1 that the court erred in allowing the People to call a rebuttal witness whо testified concerning collateral matters. Contrary to defendant‘s contention, the rebuttal witness was properly called to give testimony that was relevant to the defense witness‘s bias or motive to fabricate, which is not collateral (see People v Anonymous, 96 NY2d 839, 840 [2001]). The defense witness was defendant‘s former girlfriend, and the rebuttal witness was defendant‘s ex-wife, who married defendant after he and the defense witness ended their romantic relationship. In her cross-examination of the defense witness, the prosecutor attempted to show that defendant and the defense witness were romantically involved at the time of the trial, but the defense witness would admit only that she and defendant were friends, and claimed that she and defendant had been friends “all along,” i.e., they were friends even when defendant and the rebuttal witness were married. The prosecutor informed the court that she wanted to call the rebuttal witness to rebut the defense witness‘s testimony that she and defendant were “friends this entire time.” We disagree with our dissenting colleagues that the rebuttal witness should not have been allowed to testify. Reading the prosecutor‘s colloquy with the court on this issue, together with her cross-examination of the defense witness, we conclude that the purpose of calling the rebuttal witness was to show that defendant and the defense witness were romantically involved at the time of the trial, which the prosecutor believed could be inferred if the defensе witness and defendant had not been friends when he was married to the rebuttal witness.
We also disagree with our dissenting colleagues that our affirmance of the trial court‘s ruling violates People v Concepcion (17 NY3d 192 [2011]). The Court of Appeals has “construed
Viewing the evidence in light of the elements of the crime of course of sexual conduct against a child as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant‘s contention in his pro se supplemental brief that the verdict is against the weight of the evidence in appeal No. 1 (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant also contends in his pro se supplemental brief that he received ineffective assistance of counsel in appeal No. 1. Inasmuch as we conclude that defendant was not denied a fair trial by any alleged instances of prosecutorial miscоnduct on summation, defense counsel‘s failure to object to those comments does not constitute ineffective assistance of counsel (see People v Lyon, 77 AD3d 1338, 1339 [2010], lv denied 15 NY3d 954 [2010]). In addition, defense counsel was not ineffective in failing to call a witness to rebut the testimony of the CSAAS expert (see People v Wallace, 60 AD3d 1268, 1270 [2009], lv denied 12 NY3d 922 [2009]). Defendant‘s contention that defense counsel failed to obtain certain documentary evidence is based on matters outside the record and must be raised by way of a motion pursuant to
All concur except Carni and Lindley, JJ., who dissent and vote to reverse in accordance with the following memorandum.
Carni and Lindley, JJ. (dissenting). We respectfully dissent. We would reverse the judgment of conviction in appeal No. 1 and grant defendant a new trial, and vacate the resentence in appeal No. 2. In our view, Supreme Court erred in allowing the People to call a rebuttal witness whose testimony related solely to collateral matters. “It is well established that the party who is cross-examining a witness cannot introduсe extrinsic documentary evidence or call other witnesses to contradict a witness’ answers concerning collateral matters solely for the purpose of impeaching that witness’ credibility” (People v Pavao, 59 NY2d 282, 288-289 [1983]; see People v Hanley, 5 NY3d 108, 112 [2005]). At the same time, however, “extrinsic proof tending to establish a reason to fаbricate is never collateral and may not be excluded on that ground” (People v Hudy, 73 NY2d 40, 56 [1988]). Thus, the People may call a rebuttal witness to provide testimony that is relevant to a defense witness‘s bias or motive to fabricate, which is not collateral (see People v Anonymous, 96 NY2d 839, 840 [2001]).
Here, the People‘s rebuttal witness wаs defendant‘s ex-wife, who was called to rebut certain testimony offered by defendant‘s sole witness, a former girlfriend who dated defendant from 1995 to 2003. The defense witness testified that she had a “wonderful” relationship with defendant‘s children—the victim and her brother—and that she never witnessed defendant engage in any violent acts toward them. On cross-examination,
Following the defense witness‘s testimony, the People announced their intention to call the ex-wife as a rebuttal witness. Defense counsel objected and asked for an offer of proof. When the court asked the prosecutor what she expected from the ex-wife‘s testimony, the prosеcutor stated, “The [defense witness] testified specifically that she has been friends with the defendant the entire time, including the time after she broke up with him, and he was with [the rebuttal witness] up to the present date. I am calling the witness to rebut that statement that they were friends this entire time, because that‘s not correct.” The court then asked, “That is the limited purpose, that they were or were not friends during that period; is that what you are saying?” The prosecutor responded, “That‘s right.” The court allowed the rebuttal witness to testify over defendant‘s objection. She proceedеd to testify that she and defendant met in 2003, married in 2005 and separated in 2008. The rebuttal witness further testified that, to her knowledge, defendant did not have any contact with the defense witness after 2003.
We conclude that the court erred in allowing the rebuttal witness to testify because the limited purpose of her testimony, as stated by the prosecutor, was to rebut the defense witness‘s testimony that she remained friends with defendant after they broke up in 2003. The fact that the defense witness was defendant‘s friend was relevant to show that she may have had a bias for testifying on his behalf. The defense witness frеely acknowledged, however, that she was defendant‘s friend at the time of trial, and it was that very testimony that the prosecutor sought to rebut. The rebuttal witness‘s testimony—that the defense witness did not have contact with defendant after 2003—served only to show that the defense witness was not being truthful when shе testified that she and defendant remained friends. In our view, that constitutes impermissible impeachment testimony on a collateral matter. The fact that the defense witness was not one of defendant‘s friends while he was married to the rebuttal witness, as the rebuttal witness testified, does not show that the defense witness was biased in favor of defendant. In fact, it tends to show the opposite.
We cannot agree with the majority that “the purpose of calling the rebuttal witness was to show that defendant and the defense witness were romantically involved at the time of trial.” As noted, thе prosecutor stated that her purpose in calling the
We agree with the People to the extent that they argue that defendant was not prejudiced by the rebuttal witness‘s testimony. In fact, we are comfortable concluding that there is no “significant probability . . . that the jury would have acquitted the defendant had it not been for the error” (People v Crimmins, 36 NY2d 230, 242 [1975]; see People v Arafet, 13 NY3d 460, 468 [2009]). In order for the harmless error anаlysis to apply in the first instance, however, the proof of guilt must be “overwhelming” (Crimmins, 36 NY2d at 241; see Arafet, 13 NY3d at 468). As the Court wrote in Crimmins, “unless the proof of the defendant‘s guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error. That is, every error of law (save, рerhaps, one of sheerest technicality) is, ipso facto, deemed to be prejudicial and to require a reversal, unless that error can be found to have been rendered harmless by the weight and the nature of the other proof” (id. at 241). In our view, the error here cannot be characterized as “one of sheer[ ] technicality” (id.). Because this case turned largely on the testimony of the victim, who did not report the crimes until more than eight years after they occurred, it cannot be said that the proof of guilt is overwhelming. We are thus constrained to conclude that defendant is entitled to a new trial notwithstanding that the jury almost certainly would have convicted him even without the rather innocuous rebuttal testimony.
Finally, we agree with the majority that none of defendant‘s remaining contentions in appeal No. 1 has merit. Present—Centra, J.P., Peradotto, Carni, Lindley and Whalen, JJ.
CENTRA, J.P., PERADOTTO, CARNI, LINDLEY AND WHALEN, JJ.