People v. Halbert

175 A.D.2d 88, 572 N.Y.S.2d 331, 1991 N.Y. App. Div. LEXIS 10414

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 25, 1991
• Status: Published

Opinions

— Judgment, Supreme Court, Bronx County (Ira Globerman, J.), entered November 15, 1989, convicting defendant of one count of rape in the second degree in violation of Penal Law § 130.30, three counts of rape in the third degree in violation of Penal Law § 130.25 (2), and one count of attempted rape in the third degree in violation of Penal Law §§ 110.00, 130.25 (2) and sentencing him to indeterminate terms of 1 Vz to 4 Vz years for the conviction of rape in the second degree, 1 to 4 years on each of the convictions for rape in the third degree and 1 year on the conviction for attempted rape in the third degree, all sentences to run concurrently, affirmed.

Defendant, forty years of age, lived with the complainant’s mother and the complainant’s sister. The complainant was 13 and 14 years of age at the time of the incidents complained of. The evidence was that on four separate occasions, the defendant forced the complainant to engage in sexual intercourse against her will and, on a fifth occasion, attempted to do so. The jury found the defendant guilty of rape in the second degree in that he was over eighteen years of age and the complainant was less than fourteen, three counts of rape in the third degree in that defendant was over twenty-one years of age and the complainant less than seventeen years of age, and attempted rape in the third degree in that the defendant was over twenty-one and the complainant less than seventeen years of age.

We find no error in the court’s exclusion of evidence that the complainant was sexually active with her boyfriend. CPL 60.42 (5) precludes evidence of a victim’s sexual conduct unless a court finds that it is "relevant and admissible in the interests of justice.” Defendant made no adequate demonstration of why this testimony was necessary to his defense. Defendant wanted to show that the reason the complainant left her home was to continue a sexual relationship with her boyfriend rather than to escape further sexual encounters by the defendant. It is noted that the court did not preclude the defense from exploring the complainant’s relationship with her boyfriend except as to its sexual character.

The fact that the verdict sheet given to the jury contained the alleged dates of the alleged incidents with respect to each count was not error and was an aid to the jury in its deliberations. Moreover, no objection to the verdict sheet was raised. (CPL 470.05; People v Rivera, 73 NY2d 941 [1989].)

We have reviewed the other contentions of the defendant and find them to be without merit. Concur — Rosenberger, J. P., Kupferman, Kassal and Smith, JJ.