People v. StonePeople v. Stone
The victim (born in 1998) and her sister (born in 1999) were in the care of defendant until 2007. Both came forward in 2011 with claims that defendant had repeatedly sexually abused them as preteen children and, as a result, defendant was charged in an indictment with two counts of predatory sexual assault against a child, one for each girl. Following a jury trial, defendant was convicted of count 1, the count relating to the victim. County Court imposed а prison sentence of 12 years to life, and defendant now appeals.
Defendant first asserts that legally sufficient evidence did not establish that she was at least 18 yеars of age when the abuse occurred, an element of predatory sexual assault against a child (see
Here, the victim testified to dozens of incidents wherein defendant inserted her tongue, fingers and various foreign objects inside the victim‘s vagina. The victim‘s sister was present for some of those incidents and confirmed that they had occurred. The victim further testified that the bulk of those incidents occurred after she turned six or seven, meaning that they would have occurred no earlier than 2005. Defendant‘s current spouse, in turn, testified that defendant was born in 1979, making her well over 18 years of age when the abuse occurred. The fact that defendant called her spouse to testify is of no moment, as “a defendant who dоes not rest after the court fails to grant a motion to dismiss at the close of the People‘s case . . . proceeds with the risk that he [or she] will inadvertently sup
Far more trоublesome is the admission by County Court of testimony by the victim‘s stepmother and grandmother regarding her disclosures of abuse under the prompt outcry exception to the hearsay rule.* “A witness‘[s] trial testimony ordinarily may not be bolstered with pretrial statements” (People v McDaniel, 81 NY2d 10, 16 [1993] [citations omitted]; see People v Rosario, 17 NY3d 501, 511 [2011]), but, “[u]nder the established ‘prompt outcry’ exception to the hearsay rule . . . , ‘evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took plaсe‘” (People v Allen, 13 AD3d 892, 894 [2004], lv denied 4 NY3d 883 [2005], quoting People v McDaniel, 81 NY2d at 16; see People v Rosario, 17 NY3d at 511). The prompt outcry exception only permits testimony as to the making of a complaint, and does not extend to hearsay evidence regarding the “details of the incident[s]” related by a victim (People v Rice, 75 NY2d 929, 932 [1990]; see People v Rosario, 17 NY3d at 511).
County Court erroneously allowed testimony regarding details of the abuse that the victim allegedly relayed to her grandmother, but any argument with regard to the admission of that proof is unpreserved for our review (see People v Stearns, 72 AD3d 1214, 1218 [2010], lv denied 15 NY3d 778 [2010]; People v Pace, 145 AD2d 834, 836-837 [1988], lv denied 73 NY2d 894 [1989]). The issue of whether the outcry itself was prompt is preserved, however, and is no less troubling.
Whеther a complaint is sufficiently prompt so as to fall within the exception is not a matter of precision and depends upon the facts of a given casе (see People v Rosario, 17 NY3d at 512-513; People v Lapi, 105 AD3d 1084, 1087 [2013], lv denied 21 NY3d 1043 [2013]). That being said, “courts traditionally
The People suggest that this prolonged delаy can be attributed to the facts that the victim had sustained psychological trauma and suffered from a mild neurological impairment. Research indeed “suggest[s] that withhоlding a complaint may not be unusual,” but that fact is not dispositive in assessing whether a complaint was made promptly (People v Allen, 13 AD3d at 896; see People v McDaniel, 81 NY2d at 16-17). To hold otherwise would run against the very purpose ofthe exception, namely, to address “the tendency of some jurors to doubt the victim in the absence of” a prompt complaint of abuse (People v McDaniel, 81 NY2d at 17). As for the victim‘s nеurological condition, it suffices to say that no proof in the record suggests that it would have compelled her to remain silent for such a long period of time. Thus, givеn the absence of any adequate explanation for the victim‘s prolonged delay in disclosing the abuse, her disclosures cannot be described as prompt outcries, and the hearsay testimony regarding them should not have been admitted into evidence (see People v Rosario, 68 AD3d 600, 601 [2009], affd 17 NY3d 501 [2011]; People v Workman, 56 AD3d 1155, 1157 [2008], lv denied 12 NY3d 789 [2009]; People v Allen, 13 AD3d at 896). Inasmuch as the evidence of guilt in this case was not overwhelming—indeed, the verdict hinged on the question of whether the victim was credible—we cannot say that the erroneous admission of this bolstering hearsay was harmless (see People v Allen, 13 AD3d at 896). Thus, defendant must be given a new trial upon count 1 of the indictment.
The remaining contention raised by defendant is that the victim should not have been permitted to testify via closed-circuit television. Defendant‘s argument in that regard is academic, however, as the issue will not arise upon retrial due to the age of the victim (see
In conclusion, we feel obliged to address an issue that is not raised by defendant. Count 1 of the indictment alleges that defendant committed the crime of predatory sexual assault against a child as a result оf her actions between 2003 and 2007, but the crime itself was only created on June 23, 2006 (see L 2006, ch 107, §§ 2, 10). Defendant never apprised County Court of this defect, which would have alerted the People to the problem and permitted an opportunity to amend the indictment so that the allegations were limited to events that transpired after the crime was created (see
Lahtinen, J.P., Garry and Lynch, JJ., concur. Ordered that judgment is reversed, on the law, and matter remitted to the County Court of Broome County for a new trial on count 1 of the indictment.