Pierre v. New York City Transit Authority

May 17, 2005
Versions:18 A.D.3d 317
795 N.Y.S.2d 38
2005 N.Y. App. Div. LEXIS 5241

Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered May 30, 2003, convicting defendant, after a jury trial, of rape in the first degree and sodomy in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 25 years, unanimously affirmed.

The court properly denied defendant‘s application for a material witness order, and this ruling did not undermine defendant‘s right to present a defense. In his written application and the oral argument thereon, defendant did not establish that there was “reasonable cause to believe” that the proffered witness possessed “information material to the determination” of the action, as required under CPL 620.20. The court offered to reconsider the application upon a proper showing, but defendant ultimately provided no additional information. Despite defense counsel‘s assertions that his hands were tied since the witness was hostile to his inquiries, defendant himself could have provided an affidavit supplying additional information, as originally contemplated by defense counsel. In any event, defendant‘s assertions concerning the potentially exculpatory nature of this witness‘s testimony, including his assertions made for the first time on appeal, rest entirely on speculation. Even assuming that the witness was, in fact, referring to events that immediately preceded the rape and sodomy, her potential testimony, as described by defense counsel, was fully compatible with the victim‘s account of those events, and would not provide any support for a defense of consent. Concur—Mazzarelli, J.P., Andrias, Saxe, Williams and Catterson, JJ.