Tuesday, August 16, 2011

New trial ordered on sex conviction because jury was not allowed to hear evidence of accuser's prior false sex complaint

In Kings County New York in 2009, a stepgrandfather of an eleven-year-old, was convicted of a course of sexual conduct against a child in the second degree and endangering the welfare of a child stemming from the following alleged incident:  In January 2008, when the complainant was in the fifth grade, she told her mother that the defendant had been sexually abusing her for more than a year, starting when she was eight years old. In this initial outcry, the complainant stated only that the defendant had tried to pull her pants down, had played X-rated videos for her, had touched her around the breast area, and had masturbated in front of her. At trial, the complainant testified that, in addition to the above, the defendant, among other things, had forced her to have sexual intercourse and anal and oral sex with him on multiple occasions.

The defendant appealed his conviction, and recently, in People v Diaz, 2011 NY Slip Op 5518 (2011), the Supreme Court of New York remanded the case for a new trial. The court noted that "the evidence against the defendant was far from overwhelming, consisting as it did solely of the complainant's testimony and that of her mother," and that the trial court erred in refusing to admit evidence of the complainant's prior false claim.  The court explained:

"[I]t was error for the trial court to preclude the testimony of one of the defendant's proposed witnesses, the ex-boyfriend of the complainant's  mother and the father of the complainant's younger brother (hereinafter the ex-boyfriend). The ex-boyfriend would have testified that, when the complainant was approximately five years old, and he and her mother were living together, the complainant had accused him of 'touching her private parts,' but that subsequently, in the presence of the ex-boyfriend and the complainant's mother, the complainant had recanted and admitted to having lied. Under cross-examination, the complainant denied having made the prior allegation against the ex-boyfriend and, under direct examination, her mother denied any knowledge of that allegation. We agree with the defendant that the testimony of the ex-boyfriend was admissible . . . .
. . . .
"Evidence of a complainant's prior false allegations of rape or sexual abuse is admissible to impeach the complainant's credibility (see People v Bridgeland, 19 AD3d 1122, 1123, 796 N.Y.S.2d 768; People v Badine, 301 AD2d 178, 180, 752 N.Y.S.2d 679; People v Harris, 151 AD2d 981, 982, 542 N.Y.S.2d 71). Where, as here, 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," it is error for the trial court to preclude evidence regarding the prior allegation (People v Bridgeland, 19 AD3d at 1123 [internal quotation marks and citations omitted]; see People v Badine, 301 AD2d 178, 752 N.Y.S.2d 679; cf. People v Mandel, 48 NY2d 952, 953, 401 N.E.2d 185, 425 N.Y.S.2d 63; People v Hill, 17 AD3d 1081, 1082, 793 N.Y.S.2d 800)."