Opinion
July 11, 1967
Appeal from a judgment of the County Court of the County of Warren rendered upon a verdict convicting defendant of the crime of incest. (Penal Law, § 1110.) The testimony of the defendant's 13-year-old daughter was to the effect that, about the middle of November, 1965, her father drove her and her two younger brothers, aged 10 and 8, in his truck along a county dirt road to an isolated spot where he stopped the truck, and he and his daughter got out of the truck and walked a short distance into the woods out of sight of the truck, and there he had an act of sexual intercourse with her on the back fender of an old abandoned automobile, and that he told her he would give her a spanking if she told anyone what had happened. She further testified that the same act had occurred on a prior occasion in October, 1965. The 10-year-old brother testified, under oath, that he remembered the ride with his father, sister and younger brother; that his father told him and his brother to stay in the truck when his father and sister went into the woods; and that he saw nothing of what happened in the woods. The daughter was examined by an experienced obstetrician on February 5, 1966, and he testified that he found the vagina dilated about 1 1/2 to 2 inches, and that the condition could have been caused by intercourse or by some other cause. The defendant testified in his own behalf, and denied that he took the children for the ride as described, and further denied that he had any improper relations with his daughter. He further admitted convictions of previous crimes of assault, third degree, and burglary, third degree. Complainant's description of the crime was given in detail, and was unshaken on cross-examination. Although corroboration of the testimony of the claimant of the crime of incest, where a child under the age of consent is involved, is not required, in this case, in any event, the testimony of the brother, doctor and Under Sheriff was supportive of her testimony. ( People v. Gibson, 301 N.Y. 244; People v. De Angelis, 262 App. Div. 970.) Upon the District Attorney's cross-examination of the defendant, clearly improper questions were asked and incompetent evidence received concerning arrests. These errors, of course, require reversal. ( People v. Santiago, 15 N.Y.2d 640; Richardson, Evidence [9th ed.], § 518.) For purposes of the retrial, we mention certain of the several issues tendered by the appeal. Assuming the complainant's testimony as to her report of the incident to the police some 2 1/2 months after its occurrence may be competent, the court should clearly define to the jury the purpose of the reception of that evidence and the limitations upon the jury's consideration thereof. Upon the retrial, also, careful scrutiny should be given the admissibility of any medical evidence proffered and careful instructions should be given the jury respecting the effect and possible probative force of any testimony so received. We do not discuss appellant's additional assignments of error, some of which are without substance and some of which, presumably, will not recur. Judgment reversed, on the law and the facts, and a new trial ordered. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.