Opinion
December 16, 1977
Appeal from the Monroe Supreme Court.
Present — Marsh, P.J., Cardamone, Dillon, Hancock, Jr., and Witmer, JJ.
Judgment unanimously affirmed. Memorandum: Upon the trial of his indictment for sodomy in the first and second degrees, the jury found defendant guilty of sodomy in the third degree. The court correctly ruled that the mother of the 14-year-old victim could testify that the victim returned home at about 3:15 P.M., only a few minutes after the attack, and told her that defendant had "raped" him, and she observed that her son was trembling and visibly upset (People v Yannucci, 283 N.Y. 546, 550; People v Deitsch, 237 N.Y. 300, 304; People v Page, 162 N.Y. 272, 275-276; People v O'Sullivan, 104 N.Y. 481, 488, 490; People v Johnson, 46 A.D.2d 55, 57, affd 38 N.Y.2d 956; People v Bradley, 8 A.D.2d 982). The court erred, however, in permitting the mother to testify as to what her son told her of the details of what occurred at the time of the attack (Baccio v People, 41 N.Y. 265, 268-271; Richardson, Evidence [10th ed], § 292). The victim's testimony was corroborated by the testimony of the examining doctor, of the arresting officer who related defendant's admissions and of the defendant himself. The details of the incident as told to the mother by her son, the victim, although erroneously admitted, added nothing, and their receipt constituted harmless error (see People v Crimmins, 36 N.Y.2d 230).