Opinion
1215 KA 15–01397
11-16-2018
The PEOPLE of the State of New York, Respondent, v. Dung V. VO, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of sexual abuse in the first degree ( Penal Law § 130.65[3] ). Defendant contends, and the People correctly concede, that Supreme Court improperly precluded him from presenting evidence tending to establish that the complainant had a reason to fabricate the allegations against defendant (see generally People v. Hudy, 73 N.Y.2d 40, 56, 538 N.Y.S.2d 197, 535 N.E.2d 250 [1988], abrogated on other grounds by Carmell v. Texas, 529 U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d 577 [2000] ; People v. McFarley, 31 A.D.3d 1166, 1166–1167, 818 N.Y.S.2d 379 [4th Dept. 2006] ), and that a new trial must therefore be granted (see McFarley, 31 A.D.3d at 1166, 818 N.Y.S.2d 379 ).
It is well settled that " ‘[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations’ " ( People v. Horton , 145 A.D.3d 1575, 1575–1576, 43 N.Y.S.3d 654 [4th Dept. 2016], quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 [1973] ). "It is also well settled that in presenting the defense, counsel for the defendant ‘may establish, during both cross[-]examination and on [defendant's] direct case, the [complainant's] ... motive to lie ... This is not a collateral inquiry, but is directly probative on the issue of credibility’ " ( id. at 1576, 43 N.Y.S.3d 654 ). Here, as in People v. Ocampo, 28 A.D.3d 684, 686, 813 N.Y.S.2d 217 [2d Dept. 2006] ), "the excluded evidence was not speculative ... or cumulative ..., as it went directly to the credibility of the complainant[, and] the defense counsel offered a good faith basis for the excluded line of questioning [and evidence]." "Because it cannot be said that there is no reasonable possibility that the error contributed to the verdict, the error cannot be deemed harmless beyond a reasonable doubt and reversal therefore is required" ( McFarley, 31 A.D.3d at 1167, 818 N.Y.S.2d 379 ; see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Defendant also correctly contends that the court erred in permitting the People to present prompt outcry testimony that exceeded the proper scope of such testimony. Although "evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place" ( People v. McDaniel, 81 N.Y.2d 10, 16, 595 N.Y.S.2d 364, 611 N.E.2d 265 [1993] ), such evidence is limited to "only the fact of a complaint, not its accompanying details," including the identity of the assailant ( id. at 17, 595 N.Y.S.2d 364, 611 N.E.2d 265 ; see People v. Rice, 75 N.Y.2d 929, 932, 555 N.Y.S.2d 677, 554 N.E.2d 1265 [1990] ). We thus conclude that the court erred in permitting two of the three prompt outcry witnesses to testify concerning the identity of the alleged assailant (see generally McDaniel, 81 N.Y.2d at 17, 595 N.Y.S.2d 364, 611 N.E.2d 265 ; Rice, 75 N.Y.2d at 932, 555 N.Y.S.2d 677, 554 N.E.2d 1265 ).
We thus conclude that either error, alone, would justify reversal and that the cumulative effect of the errors denied defendant a fair trial (see generally People v. Shanis, 36 N.Y.2d 697, 699, 366 N.Y.S.2d 413, 325 N.E.2d 873 [1975] ).
Based on our determination, the remainder of defendant's contentions are academic.