Opinion
84
January 30, 2003.
Judgment, Supreme Court, Bronx County (Troy Webber, J.), rendered February 15, 2001, convicting defendant, after a jury trial, of rape in the second degree and endangering the welfare of a child, and sentencing him to concurrent terms of 3 to 6 years and 1 year, respectively, unanimously affirmed.
Zaharah R. Markoe, for Respondent.
Laura I. Appleman, for Defendant-Appellant.
Before: Tom, J.P., Mazzarelli, Sullivan, Williams, Gonzalez, JJ.
The court properly exercised its discretion in admitting uncharged crimes evidence since this evidence completed the narrative by setting forth a pattern of behavior between defendant and the victim, and placed the events as described by the victim in a believable context, with particular reference to her conduct at the time of the charged crime and her failure to report it promptly (see People v. Santiago, 295 A.D.2d 214,lv denied 98 N.Y.2d 901; People v. Steinberg, 170 A.D.2d 50, 72-74, affd 79 N.Y.2d 673). Moreover, evidence of the second uncharged crime was also necessary to explain the actions of the victim's brother, a corroborating witness, at the time of the charged crime. Contrary to defendant's argument, the clear implication of the court's ruling, viewed as a whole, is that both uncharged crimes were admitted for similar, appropriate purposes.
The court properly exercised its discretion in permitting limited testimony concerning the victim's allegedly bloodstained bathing suit and in denying defendant's request for preclusion of all testimony on this subject as a sanction for the People's loss of the item (see People v. Kelly, 62 N.Y.2d 516; see also People v. Martinez, 71 N.Y.2d 937). The People had neither a statutory (see CPL 240.20) nor a constitutional (see Arizona v. Youngblood, 488 U.S. 51) duty to produce the bathing suit, and its loss was inadvertent. To the extent that any further remedy was warranted, an adverse inference instruction would have sufficed to prevent any prejudice but defendant rejected the court's offer to deliver such a charge.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.