Opinion
November 18, 1992
Appeal from the Supreme Court, Kings County (Marrus, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The indictment charged the defendant with committing separate crimes against two different women, on two different dates. As to the events of November 28, 1987 (the crimes at issue here), the defendant was charged with kidnapping in the second degree (Penal Law § 135.20), two counts of assault in the second degree (Penal Law § 120.05, [6]), attempted rape in the first degree (Penal Law § 110.00, 130.35 Penal [1]), and attempted sexual abuse in the first degree (Penal Law § 110.00, 130.65 Penal [1]). In the second series of crimes, the defendant was charged with having kidnapped, assaulted, and sexually abused another woman on February 13, 1988. The prosecutor, in his opening statement, described both sets of crimes, and then presented a so-called "outcry" witness who testified that the second woman told of having been kidnapped and assaulted by an unnamed assailant. As the trial proceeded, it became evident that the second woman would be unavailable to testify, and the defendant moved for a mistrial, which the court denied. At the conclusion of the trial the court dismissed those counts of the indictment relating to the second woman.
In many cases the prejudice resulting from inadmissible evidence or unfulfilled openings may be blunted or eliminated by judicial instructions (see, People v Blyden, 142 A.D.2d 959; see also, De Vito v Katsch, 157 A.D.2d 413, 419, n 6), but here the damage was ineradicable and transcended the court's cogent efforts in striking the testimony and instructing the jury to disregard it. Accordingly, the defendant's motion for a mistrial should have been granted, and a new trial is warranted (People v Cruz, 100 A.D.2d 882). Harwood, J.P., Balletta, Rosenblatt and Lawrence, JJ., concur.