People v. Gaskins

171 A.D.2d 272, 575 N.Y.S.2d 564, 1991 N.Y. App. Div. LEXIS 13740
Appellate Division of the Supreme Court of the State of New York·Decided October 28, 1991·Published·Cited by 10 cases

Opinion

OPINION OF THE COURT

Eiber, J.

In an effort to reduce the trauma suffered by young [274]*274victims of sexual abuse, in 1984 the Legislature enacted CPL 190.32, which permits the prosecutor to present to the Grand Jury a child victim’s videotaped testimony in lieu of his or her live testimony. At the same time, CPL 240.45, which codifies the Rosario rule (see, People v Rosario, 9 NY2d 286), was amended to expressly require the prosecutor to make available to a defendant “an examination videotaped” pursuant to CPL 190.32. The issue on this appeal is whether, in cases such as this where a videotaped examination of a child is presented to the Grand Jury in accordance with the procedures outlined in CPL 190.32, the transcribed minutes of that examination can be deemed the duplicative equivalent of the videotaped examination, thus relieving the prosecutor of the obligation to make the videotape available to the defendant. For the reasons which follow, we conclude that the transcribed minutes of the child witness’s examination cannot be deemed the duplicative equivalent of the videotaped examination. Since the prosecutor in this case failed to turn over the videotaped examination of the child victim in violation of the recent statutory amendment to the Rosario rule, the defendant’s conviction must be reversed and a new trial ordered.

I

In January 1987 the six-year-old victim was taken to the hospital by her mother for treatment of a vaginal discharge. At the hospital, the child was diagnosed as suffering from gonorrhea. She subsequently revealed that her mother’s boyfriend, the defendant, had sodomized her on several occasions. The mother filed a criminal complaint against the defendant, and he was arrested on February 4, 1987. Two months later, in accordance with CPL 190.32, an Assistant District Attorney videotaped the child’s testimony for presentation before the Grand Jury.

During the videotaped examination, the child testified that the defendant had fondled and sodomized her three times during the later part of 1986. Throughout the examination, the six-year-old victim was often unable to verbally describe what had happened to her, and thus demonstrated the defendant’s actions through the use of anatomically correct dolls. The child’s age and limited vocabulary required the Assistant District Attorney conducting the examination to ask leading questions, and to describe the child’s responses. For example, the child testified to the first incident of sexual abuse and sodomy as follows:

[275]*275"Q. What did [the defendant] do to you?
"A. Put a finger on my thing.
"Q. Okay. On your thing. Could you show me with the dolls? Let’s say this is the girl doll and this is the boy doll. Could you show me what [the defendant] did * * *
"A. Put finger on my thing.
"Q. On your thing? What do you call the thing that he put his finger on?
"A. My poo poo (ph).
"Q. Would that be your vagina down here, your vagina?
"A. (nodding).
"Q. Okay. Did [the defendant] do anything else to you?
"A. (nodding).
"Q. Show me what [the defendant] did to you.
"A. He put his thing on my back.
"Q. Okay. Could you show the camera what you’re talking about, what [the defendant] did?
"A. Put his thing on my back.
"Q. When you say thing are you talking about this, his penis?
"A. Yeah.
"Q. Where did he put his thing in, right there?
"A. Yeah.
"Q. Okay. Inside the hole that’s back there?
"A. Yeah”.

Following presentation of the case to the Grand Jury, the defendant was charged in indictment number 2524/87 with sodomy in the first degree (four counts), sexual abuse in the first degree (four counts), and endangering the welfare of a child (five counts).

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People v. Gaskins, 171 A.D.2d 272, 575 N.Y.S.2d 564, 1991 N.Y. App. Div. LEXIS 13740 (N.Y. Ct. App. 1991).

171 A.D.2d 272 (People v. Gaskins) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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