May 11, 1990
Appeal from the Steuben County Court, Purple, J.
Present — Doerr, J.P., Boomer, Green, Pine and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: The court did not err in refusing to impose sanctions upon the prosecution for neglecting to turn over Brady material until the commencement of the trial. Defense counsel requested an adjournment so that he could review the Brady material and the court granted the adjournment. Dismissal or preclusion of testimony is too harsh a sanction "where less severe measures can rectify the harm done" (People v. Kelly, 62 N.Y.2d 516, 521; see also, People v. Nelson, 144 A.D.2d 714, lv denied 73 N.Y.2d 894; People v. Eleby, 137 A.D.2d 708, lv denied 71 N.Y.2d 1026). Here, the grant of an adjournment was the proper, less severe measure.
It was proper to permit the victim to testify to a previous sexual assault upon her by defendant because defense counsel opened the door to such testimony by attempting to show that she was biased against defendant. "Where a witness has been attacked on the ground of his interest or bias, the party introducing him is entitled to introduce evidence tending to show the nature and extent of such interest or bias, or to explain, counteract, or justify it" (98 CJS, Witnesses, § 571 [a]; see also, People v Wood, 201 N.Y. 158, 162; People v. Wenzel, 189 N.Y. 275, 283-284; People v. Sandow, 133 Cal.App. 559, 24 P.2d 521). The facts in this case are similar to those in Bracey v. United States ( 142 F.2d 85, 89, cert denied 322 U.S. 762). There, in a prosecution for sexual molestation by a parent upon his child, the defense attorney, in cross-examining the victim, asked her whether she liked her father. The appellate court held that the trial court properly exercised its discretion in permitting the prosecutor to show, on redirect examination, that the reason the child did not like her father was that he had done the same thing to her before.
We find no merit to defendant's argument that there should be a reversal because he was absent during a material part of the trial. When the foreman appeared before the court and counsel, in defendant's absence, the court did not give instructions to the jury and the communications between the court and the foreman were not of such a nature as to have potentially influenced the jury's deliberations (see, People v. Sterling, 141 A.D.2d 680, 681, lv denied 73 N.Y.2d 790; People v. Moore, 129 A.D.2d 590, 591, lv denied 70 N.Y.2d 651).