622 N.Y.S.2d 9 | N.Y. App. Div. | 1995
Judgment, Supreme Court, Bronx County (George Covington, J.), rendered March 4, 1993, convicting defendant, after a jury trial, of attempted sodomy in the first degree, seven counts of sexual abuse in the first degree and six counts of endangering the welfare of a child and sentencing him thereupon to consecutive indeterminate terms of imprisonment of from five to fifteen years on the attempted sodomy conviction and from two and one-third to seven years on two of the sexual abuse counts and also sentencing him to concurrent indeterminate terms of imprisonment of from two and one-third to seven years on the remaining sexual abuse counts and to a definite term of one year for each of the endangering the welfare of a child counts, said terms to run concurrently with the sentence imposed on the attempted sodomy conviction, for a total sentence of from nine and two-thirds to twenty-nine years, unanimously reversed, on the law, and the matter remanded for a new trial on all counts except count eight, which is dismissed.
Although the proof of guilt against the fifty-nine year-old defendant, the eight-year old complaining witness’s step-grandfather, was sufficient to establish his guilt of all remain
As to the first of these conversations, the trial court sustained the People’s objections to counsel’s inquiry as to whether the stepfather, who admittedly had a drug background, had ingested drugs at or around the time he confronted defendant and whether he spoke to his father in a loud and aggressive manner. As to the second conversation, the court sustained the prosecutor’s objection to counsel’s question as to whether the stepfather had demanded that defendant plead guilty. The court similarly curtailed defendant’s testimony concerning the circumstances surrounding the two statements. As to the first, the court sustained objections to defendant’s testimony that the stepfather appeared "drugged up”, to questions about the stepfather’s appearance and the manner in which he was speaking to defendant, to defendant’s testimony that the stepfather "was out of what is normal” and even as to whether defendant had made the statement. As to the second statement, the court sustained an objection to counsel’s question as to the manner in which the stepfather spoke to defendant.
The demeanor of the person to whom an incriminatory statement is alleged to have been made is relevant to both the voluntariness and reliability of the statement. It is of no
It should be noted that, aside from the two statements, the only evidence directly implicating defendant was the complaining witness’s testimony. On this record, we cannot conclude that the court’s rulings precluding defendant from inquiring fully into the circumstances of his statements, which undoubtedly, played a significant part in the jury’s determination, were harmless beyond a reasonable doubt.
The court also erred in refusing to charge the jury to disregard defendant’s statements if it determined that they were involuntarily made. Notwithstanding the rulings complained of, the record contains sufficient evidence to create a factual dispute as to their voluntariness. As defendant testified, referring to the first encounter with his son after the complaining witness first reported his actions, "I was even afraid that—we were very afraid because he was out of what is normal.”
As conceded by the People, count eight of the indictment charging him with sexual abuse in the first degree should be dismissed for insufficiency of proof. Concur—Murphy, P. J., Sullivan, Wallach, Nardelli and Tom, JJ.