50 A.D.2d 1089 | N.Y. App. Div. | 1975
— Judgment unanimously reversed, on the law and facts, and a new trial granted. Memorandum: Defendant, after a jury trial, was convicted of rape in the first degree (Penal Law, § 130.35) and sentenced as a second-felony offender to a term of imprisonment of 5 to 10 years. In urging reversal, defendant asserts erroneous exclusion of proffered testimony concerning statements allegedly made by the complaining witness at the time period during which the alleged abuses of complainant by defendant occurred. In addition, defendant attacks the constitutionality of subdivision 1 of section 130.35 of the Penal Law, of which he now stands convicted, as well as the constitutionality of section 70.06 of the Penal Law under which he has been sentenced as a second-felony offender. Factually pertinent to this appeal, the principal witness against the defendant was the complainant victim, a girl 15 years of age at the time of the incident. She testified that she was introduced to the defendant by several of her friends