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On 22 February 1992, complainant, who was then 33 years of age

On 22 February 1992, complainant, who was then 33 years of age, was followed by defendant when she entered in the elevator of her Queens apartment building. Allegedly, defenedant pinned her in the corner, threatened to kill her, blindfolded her and dragged her to the roof landing where he raped and sodomized her. According to the complainant, after the attack, and in an effort to trap defendant and deliver him to the police, she exchanged phone numbers with him and arranged a meeting for the following day, at which time she had consensual sex with him at his apartment.

According to the defendant, in his statement to the police, he met complainant outside a neighborhood store, talked at length with her there and then in her apartment lobby, was invited by her to the roof landing where they had a consensual sexual encounter, exchanged phone numbers and made a date for the next day; the next day, he met complainant outside her apartment building and then traveled with her to his apartment in Brooklyn where they had consensual sex.

Consequently, defendant was charged with rape and sodomy, two counts of attempted robbery, sexual abuse and two counts of assault.

The People sought to introduce evidence of defendant’s prior sexual misconduct related to his 1983 burglary convictions, specifically, the testimony of several women that defendant had accosted them and demanded sex, fondled them or engaged in other sexually deviant behavior. According to the People, such evidence was necessary to show his intent during the alleged attack on complainant. The trial court noted, in accepting the People’s argument, that the prior misconduct evidence was necessitated by the extraordinary fact that, after the alleged rape, complainant engaged in consensual sex with appellant. The trial court ruled that the People could call four of the women to testify as to defendant’s prior sexual misconduct. Thereafter, defendant announced that he would abandon his consent defense.

Defendant was convicted of one count each of rape, sodomy, sexual abuse and attempted robbery. The Appellate Division affirmed the trial court’s decision. Consequently, defendant appealed and argued that the trial court’s ruling, which led him to give up his consent defense, denied him a fair trial. The herein court agrees.

As a rule, evidence of uncharged crimes and offenses is inadmissible if offered for no purpose other than to raise an inference that a defendant is of a criminal disposition and, therefore, likely to have committed the crime charged. This was the ruling of the court in the cases of People v. McKinney, and in People v. Molineux. While it is true that intent is one of the elements of a crime for which prior misconduct evidence may be admitted, evidence of prior misconduct to prove intent is unnecessary where intent may be easily inferred from the commission of the act itself, as held in the cases of People v. Alvino, and People v. Ingram. In the case of People v. Hudy, the court held that evidence of prior sexual misconduct was erroneously introduced when it tended to show only that if defendant did it once, he would do it again, and he therefore probably abused the other children.

Here, there were two starkly contrasting scenarios presented, with only credibility in issue. If the trier of fact believed defendant’s version of events, complainant consented to a sexual encounter with him on the night of 22 February 1992. If the trier of fact found complainant more credible, defendant used force and threats to rape her, with intent readily inferable from the acts alleged. As held in the case of Hudy, the prior misconduct evidence was relevant only to lend credibility to complainant by suggesting that, because defendant had engaged in sexual misconduct with others, he was likely to have committed the acts charged. Clearly, the evidence was improperly ruled as admissible, following the ruling in the case of People v. Lewis.

Accordingly, the judgment was reversed and a new trial was ordered. In view of this, the court need not reach appellant’s additional arguments.

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