People v. Fogarty

86 A.D.2d 617

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 1982
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Suffolk County (D’Amaro, J.), rendered January 26, 1978, convicting him of sexual abuse in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a. matter of discretion in the interest of justice, and new trial ordered. At the trial, the People adduced testimony from a child psychiatrist with reference to the infant complainant’s veracity and his vulnerability to sexual involvement with an adult. This testimony improperly bolstered the complainant’s credibility and unduly colored the jurors’ assessment of his veracity. References to such testimony were made by the prosecutor in his summation, thereby compounding the prejudice to defendant. In addition, in his summation the prosecutor made repeated reference to the complainant’s mental and social disabilities and made statements obviously calculated to impermissibly bolster the complainant’s testimony, adding to the shroud of unfairness cloaking this trial. In view of the foregoing, defendant is entitled to a new trial (see People v Fogarty, 86 AD2d 617 [No. 42]). Lazer, J. P., Gulotta, Cohalan and Bracken, JJ., concur.