The defendant was a remedial math teacher at Glenwood Elementary School in Vestal, New York at the time of the alleged criminal incidents. Official concern about his classroom conduct was aroused when the younger brother of one of defendant’s former pupils, MM, told his mother that he had heard about a teacher who puts his hands down boys’ pants. When questioned by his mother, he confirmed that he had been fondled by defendant and that defendant had put his hands down other boys’ pants as well.
Thereafter, Mrs. L. sought to confirm the allegation by contacting the mother of another boy, JJ, who had been in defendant’s class with MM. The next morning, MM and JJ discussed the matter on the school bus for rumors about defendant’s misconduct had already spread to the school and reached the principal’s office by the time Mrs. L. contacted him. Within a few weeks, the police became involved and launched a wider investigation into defendant’s conduct. Within a three-week period, the police had obtained inculpatory evidence from eight boys, all of whom were defendant’s students.
As a result, defendant was indicted on 23 counts of first degree sexual abuse and 9 counts of endangering the welfare of a child, all involving children under the age of 11. Seven of the sexual abuse counts were dismissed for either duplicity or lack of specificity. Of the remaining 25 counts, 19 involved incidents occurring between September 1983 and November 1984 and 6 involved incidents occurring between November 1984 and December 1985.
Before the commencement of trial, the trial court denied a CPL 190.65 motion by defendant to dismiss the 19 counts involving pre-November 1984 incidents on the ground that those counts were not supported by legally sufficient Grand Jury evidence. The motion was based on a defense contention that the Ex Post Facto Clause of the United States Constitution foreclosed application of the recently enacted statute repealing the corroboration rules that would otherwise have governed the trial on those counts.
At defendant’s trial, all eight of the children who had been interviewed by the police, as well as a ninth child, testified. With one exception, each boy described, in essentially similar terms, how he had stood behind defendant’s desk and had his penis touched or fondled by defendant while ostensibly receiving help with a math problem. DD, who was not himself abused, stated that, upon approaching defendant’s desk, he had seen defendant with his hand down MM’s pants.
Defense counsel closely cross-examined each of the prosecution witnesses as to whether he had discussed, or heard other students discuss, the allegations about defendant or had heard anything about the police investigation of defendant’s conduct. Additionally, each witness was questioned about his failure to report the alleged incidents at the time they occurred, as well as whether he liked or disliked defendant and whether he thought or heard that defendant was gay.
These lines of questioning were intended to support the defense’s primary theory, first advanced in counsel’s opening statement that a false accusation had begun when MM lied to his younger brother about defendant’s conduct and then felt a need to adhere to his story when questioned to avoid punishment. It was the defense’s position that after MM’s story first came to light it had snowballed, quickly spreading throughout the school and inciting other students to make similar and equally unfounded accusations.
The People were permitted to call an additional witness, DD, who had been in one of defendant’s classes but had moved to another State more than a year before the investigation into the present charges began. This witness testified that, like the others, he had been fondled by defendant while he was supposedly receiving help with a math problem at defendant’s desk. He further testified, in contrast to the others, that he had promptly reported the matter to his grandmother, who, in turn, had reported the matter to his mother. The grandmother also was permitted to testify about DD’s statements to her, her own statements to the boy’s mother and the letter that the mother had sent to defendant and the school psychologist in which she requested that the improper touching be stopped.
Although the trial court initially had misgivings about admitting this evidence of a prior uncharged sex crimes, it ultimately determined that the testimony was admissible by analogy to the rule governing the use of a witness’s prior consistent statements. In the trial court’s view, DD’s testimony was admissible because it tended to rebut the defense theory that the current charges were the product of either a rumor or a conspiracy among the children who were in the school at the time MM’s accusation first surfaced.
The defense called 12 witnesses, including defendant, several character witnesses and several teachers, who testified that they had never witnessed any sexual misconduct on defendant’s part although they often had occasion to be in his classroom.
The counsel pointed to the evidence that at least one of the boys, KK, had first denied that any improper touching had occurred and then changed his mind after Investigator KR told him that the police had two witnesses who had seen such touching occur. Counsel also represented, based upon the police reports he had seen, that there may be three or four or five other such incidents.
The trial court concluded that the proposed questioning was relevant only to the victims’ credibility and was therefore “collateral.” As a consequence, the court excluded all questioning of the investigating officers, with the exception of a brief series of leading questions concerning Investigator KR’s interview with KK.
The jury found defendant guilty of all of the submitted criminal charges. The Appellate Division affirmed the judgment of conviction, holding that the present law did not require corroboration of the underage victims’ testimony and that the Ex Post Facto Clause of the Constitution did not foreclose application of the present law to charges involving crimes that had been committed before the law’s enactment. A majority of the court also rejected defendant’s arguments concerning the admission of DD’s testimony and the restriction of his right to question Officer BB and Investigator KR. Defendant was granted leave to take a further appeal by one of the dissenters at the Appellate Division.
Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.
The modern formulation of the ex post facto rule may be found in the three leading Supreme Court cases, Weaver v. Graham, Dobbert v. Florida, and Beazell v. Ohio. One purpose of the rule is to assure that citizens have fair warning of what conduct will be punished so that they may rely on the explicit laws and tailor their conduct accordingly as held in Weaver v. Graham and Dobbert v. Florida. The ban on ex post facto laws also serves to restrain arbitrary and potentially vindictive legislation as held in Weaver v. Graham, Malloy v. South Carolina and Kring v. Missouri.
It was held in Weaver v. Graham, Dobbert v. Florida and Lindsey v. Washington that the critical elements necessary to establishing that a criminal or penal law is ex post facto are its retrospectivity and its detrimental effect on the accused. However, not every retrospective application of a new enactment that impairs a criminal defendant’s rights is violative of the Ex Post Facto Clause.
Beazell v Ohio held that the constitutional prohibition extends to any statute which punishes as a crime an act previously committed, which was innocent when done which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed. Further, “the constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance. Thus, it was held in Dobbert v Florida that even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.
In People v Linzy and People v Blank, it was held that if this distinction between procedural and substantive changes in the law were mechanically applied, there would be no doubt that the repeal of corroboration laws would not be encompassed within the Ex Post Facto Clause, since such laws do not add to the legislatively defined sex crimes, do not alter the elements of existing crimes, do not elevate the punishment for existing crimes and are generally treated as procedural rules of evidence.
However, the seemingly simple distinction between matters of mere procedure and matters of substantive penal significance has not been so easy to apply in practice. As was recognized in Thompson v Utah, labels are not particularly helpful in this area of constitutional analysis, since changes affecting the penalty for or the substance of a crime may easily be disguised as procedural enactments. Further, some procedural changes may have such a profound detrimental impact on the defense that they cannot fairly be disregarded. Consequently, the courts have struggled to define the types of changes in the law that, although labeled “procedural,” will nonetheless be treated as ex post facto laws if given retrospective effect.
In this regard, there have been two discernible lines of analysis. The first of these considers so-called “procedural” changes to be ex post facto if they impair a “substantial right” of the defendant. The Supreme Court has used this approach to invalidate retroactive application of new procedural rules on only two occasions. However, the court has twice rejected ex post facto challenges based on the “substantial right” theory to changes in evidentiary rules governing the admissibility of certain classes of evidence.
The court finds that this has no application in this case which concerns a change in a rule of arson requiring corroborative proof for what is otherwise competent and admissible testimonial evidence.
Having concluded that the evidence at defendant’s trial was legally sufficient to support his convictions, the court now turns to defendant’s claims regarding the trial court’s evidentiary rulings. Defendant contends that the trial court erred in permitting the prosecutor, over defense counsel’s objection, to elicit evidence that defendant had committed similar acts of sexual abuse with DD, a former pupil who had since moved away from the community. He also contends that the court’s refusal to permit him to question the police investigators about their interviews with the child-witnesses was improper and prejudicial. The court agrees with defendant’s position on both issues.
The court finds that the evidence concerning defendant’s prior misconduct with DD had no relevance to any material issue in the case and tended only to demonstrate defendant’s general criminal propensity. Hence, it should have been excluded under People v. Molineux and the subsequent decisions applying the principles set forth in that case.
As held in People v Lewis, People v Ventimiglia, People v Santarelli and People v Allweiss, it is elementary that evidence of a defendant’s prior criminal or immoral conduct is inadmissible if it cannot logically be linked to some specific material issue in the case. Although such evidence has some minimal probative worth because of its tendency to demonstrate the defendant’s bad character and general criminal propensity, it is excluded as a matter of law when it has no additional relevance to a specific issue, because there is a very real danger that the trier of fact will overestimate its significance.
The first level of this inquiry requires the proponent of the evidence, as a threshold matter, to identify some issue, other than mere criminal propensity, to which the evidence is relevant. Once such a showing is made, the court must go on to weigh the evidence’s probative worth against its potential for mischief to determine whether it should ultimately be placed before the fact finder. This weighing process is discretionary, but the threshold problem of identifying a specific issue, other than propensity, to which the evidence pertains poses a question of law as in People v. Alvino.
The DD evidence was highly prejudicial and therefore not “harmless,” despite the fact that eight other boys recounted essentially the same story. The DD evidence was qualitatively different from the testimony of the other boys, in that it was not subject to impeachment under the defense’s “rumor” theory. Because of the relative strength of this evidence, particularly as it was bolstered by the grandmother’s corroborative testimony, there is a serious danger that the jury used it to draw the impermissible inference and to resolve any doubts it might otherwise have had about the other boys’ stories in the People’s favor.
The court also concludes that defendant was improperly denied the right to present his case by the trial court’s ruling foreclosing examination of the two investigating officers about the manner in which the child pornography -witnesses were first questioned.
People v Sorge established that the trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters. However, extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground. Further, the trial court’s discretion in this area is circumscribed by the defendant’s constitutional rights to present a defense and confront his accusers.
Both the constitutional and the evidentiary rules were breached when the trial court precluded defense counsel from questioning the police officers in the manner proposed. Defense counsel had a good-faith basis for the proposed line of questioning, and no one challenges the bona fides of his claim, which was based upon statements in the investigators’ reports as held in People v. Gilliam. Although the trial court concluded that the proposed line of questioning was “collateral,” its conclusion is obviously flawed, since the questioning concerned more than the credibility of the People’s witnesses in general and went instead to a possible reason for fabrication by these impressionable witnesses, i.e., the investigators’ suggestive comments.
The fact that defendant had a limited opportunity to explore the matter during his cross-examination of the child-witnesses does not cure the error in the court’s evidentiary ruling. Indeed, the evidentiary error lies precisely in the trial court’s refusal to permit extrinsic proof of a matter that went beyond a mere attack on the witnesses’ general credibility.
The court finds that contrary to the suggestion of the dissent, the information defense counsel sought to elicit from the investigating officers was not duplicative of the admissions he elicited from some of the child-witnesses that they had changed their stories after police questioning. Both the two children who had made such admissions and the other children who had given a detailed story for the first time after police questioning were potentially subject to impeachment on the theory that their stories had been influenced by what they had heard from the investigators. Although defense counsel attempted to explore the possibility of suggestive police comments during his cross-examination of the child-witnesses, his efforts were met with flat denials. These denials might well have been materially impeached if defense counsel had been permitted to question Investigator KR and Officer BB about their comments to these impressionable young boys.
The court finds that there is no theory under which the error can be considered harmless. The issue of the manner in which the police had interviewed all of the young victims and the possibility that there had been a degree of suggestiveness in their approach went to the heart of defendant’s case. The limited questioning which the court permitted concerning the manner in which one of the witnesses, KK, had been interviewed was no substitute for the broader inquiry that was improperly precluded. Further, because defendant was precluded from questioning the police officers about the manner in which the boys had been interviewed, his ability to develop the defense theory was seriously curtailed and the prosecutor was placed in a position to argue on summation that any defense contention concerning the victims’ motive to falsify was purely speculative.
The Ex Post Facto Clause of the United States Constitution does not require that a defendant be tried under the corroboration rules that existed at the time his alleged sex crimes were committed.
Accordingly, the amended versions of Penal Law §§ 130.16 and 260.11 were properly applied at defendant’s trial, and the evidence was legally sufficient to support the jury’s verdicts, notwithstanding that most of the charges were not supported by corroborative proof.
The court nonetheless holds that because the trial court’s erroneous evidentiary rulings were highly prejudicial, the conviction that was based on those verdicts cannot be permitted to stand.
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