81 A.D.2d 870 | N.Y. App. Div. | 1981
— Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 14, 1979, convicting him of rape in the first degree and sodomy in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. In the early morning hours of May 24, 1977, a man wearing a mask raped the complainant in the second-floor hallway of the Brooklyn apartment building where she lived. The man also forced his victim to perform oral sex upon him. While this was occurring, the complainant’s boyfriend and girlfriend became concerned about the complainant’s failure to return to her apartment and consequently began a search for her. It was in the course of this search that the two briefly encountered a man as he exited the complainant’s building. At trial, the boyfriend and girlfriend each identified the defendant as the individual they had seen coming out of the complainant’s building on the night of the rape. In her testimony, the complainant recounted the details of the attack, including the fact that her assailant had spoken to her at various times. She then described a voice showup conducted at the precinct after the defendant had been arrested and stated that she had recognized the voice that she had heard as that of her assailant. At the request of the prosecution, the defendant was made to stand up while the complainant testified that she recognized his body build and skin color. On cross-examination, the complainant stated that her assailant was naked from the waist down during the incident and that she saw his entire genital region. She did not, however, notice any scars or markings on his lower abdominal region. After the People rested, defendant moved to be allowed to exhibit to the jury a 14- to 16-inch abdominal scar resulting from surgery performed on him prior to the date of the rape. The trial court indicated that it would grant the application if the defendant took the stand, appar