Opinion
March 11, 1994
Appeal from the Niagara County Court, DiFlorio, J.
Present — Denman, P.J., Balio, Lawton, Fallon and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: Because we cannot conclude that defendant's presence at an in-chambers Sandoval hearing would have been superfluous, the denial of defendant's right to be present at that hearing mandates reversal (see, People v. Favor, 82 N.Y.2d 254; People v Dokes, 79 N.Y.2d 656).
Although it is not necessary to consider the remaining issues raised by defendant, we observe that the trial court erred in admitting the victim's tape-recorded statement under the "early outcry" or "prompt complaint" exception to the hearsay rule. While a witness may testify that a prompt complaint was made, a statement that includes the details of the incident is inadmissible (People v. Rice, 75 N.Y.2d 929, 932; People v Riggio, 144 A.D.2d 951, lv denied 73 N.Y.2d 981). The court also erred in admitting opinion evidence in this rape case concerning whether it was unusual for 50% of sperm to be motile. The foundation for that evidence was insufficient because it was based solely on proof that the witness had been a nurse for 25 years; there was no proof concerning the nature of the witness' work experience.