Opinion
777 KA 18-00892
11-10-2022
The PEOPLE of the State of New York, Respondent, v. Marquis D. ANDREWS, Defendant-Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., NEMOYER, WINSLOW, BANNISTER, AND MONTOUR, 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 following a jury trial of two counts of sexual abuse in the first degree ( Penal Law § 130.65 [1], [4] ) and two counts of sexual abuse in the second degree (§ 130.60 [2]). Defendant failed to preserve for our review his contentions that the indictment was duplicitous (see People v. Allen , 24 N.Y.3d 441, 449-450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ; People v. Riley , 182 A.D.3d 1017, 1017, 123 N.Y.S.3d 328 [4th Dept. 2020], lv denied 35 N.Y.3d 1069, 129 N.Y.S.3d 383, 152 N.E.3d 1185 [2020] ) and that the indictment, as amplified by the bill of particulars, was insufficiently specific (see generally People v. Waldron , 162 A.D.2d 485, 486, 556 N.Y.S.2d 404 [2d Dept. 1990] ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice.
To the extent defendant has preserved the issue for our review (see generally People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Ferguson , 177 A.D.3d 1247, 1248, 112 N.Y.S.3d 368 [4th Dept. 2019] ) and viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we reject defendant's contention that the evidence is legally insufficient to support his conviction (see People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we likewise reject defendant's contention that the verdict is against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; People v. Goodson , 144 A.D.3d 1515, 1515, 41 N.Y.S.3d 635 [4th Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 379, 76 N.E.3d 1082 [2017] ).
We agree with defendant, however, that County Court erred in precluding him from calling a witness who would testify that the complainant offered to make a false allegation of abuse against the witness's boyfriend. "Questioning concerning prior false allegations of rape or sexual abuse is not always precluded ..., and the determination whether to allow such questioning rests within the discretion of the trial court" ( People v. Bridgeland , 19 A.D.3d 1122, 1123, 796 N.Y.S.2d 768 [4th Dept. 2005] [internal quotation marks omitted]). Evidence of a complainant's prior false allegations of rape or sexual abuse is admissible to impeach the complainant's credibility where a "defendant establishe[s] that the [prior] allegation may have been false[, and] ... that the particulars of the complaints, the circumstances or manner of the alleged assaults, or the currency of the complaints were such as to suggest a pattern casting substantial doubt on the validity of the charges made by the complainant" ( People v. Diaz , 85 A.D.3d 1047, 1050, 926 N.Y.S.2d 128 [2d Dept. 2011], affd 20 N.Y.3d 569, 965 N.Y.S.2d 738, 988 N.E.2d 473 [2013] [internal quotation marks omitted]; see People v. Halmond , 52 A.D.3d 1278, 1278-1279, 859 N.Y.S.2d 811 [4th Dept. 2008], lv denied 11 N.Y.3d 737, 864 N.Y.S.2d 395, 894 N.E.2d 659 [2008] ). Here, based on the proffer made at trial, defendant's proposed witness would have testified that the complainant offered to knowingly make a false allegation against the witness's boyfriend and that this conduct took place around the same time as the first incident alleged against defendant and just months before the second such incident. Further, per defense counsel's proffer, the nature and circumstances of the allegations against defendant and the offered allegation against the witness's boyfriend were sufficiently similar to "suggest a pattern casting substantial doubt on the validity of the charges" ( Diaz , 20 N.Y.3d at 576, 965 N.Y.S.2d 738, 988 N.E.2d 473 ).
At trial, the evidence against defendant was not overwhelming, the conviction rested largely—if not entirely—on the testimony of the complainant, and the proposed witness precluded by the court was the sole witness defendant sought to call. Under these circumstances, we conclude that the court abused its discretion in precluding the defendant from calling that witness (see Bridgeland , 19 A.D.3d at 1123, 796 N.Y.S.2d 768 ), that the error was not harmless, and that a new trial must be granted (see Diaz , 20 N.Y.3d at 576, 965 N.Y.S.2d 738, 988 N.E.2d 473 ).
In light of our determination, we do not reach defendant's remaining contentions.