People v. Seaman

239 A.D.2d 681, 657 N.Y.S.2d 242, 1997 N.Y. App. Div. LEXIS 4956

Opinions

Crew III, J.

On April 28,1995 defendant, a 53-year-old male, was indicted and charged with one count of sodomy in the third degree. The charge stemmed from allegations made by a then 17-year-old boy that defendant had anally sodomized him in a hot tub at defendant’s cabin in the Town of Minerva, Essex County, in January or February 1992. At trial, the People’s case rested primarily on the testimony of the victim. Expert testimony was adduced concerning the "abused child syndrome”, and a good deal of evidence was presented concerning the "sexual climate” at defendant’s cabin, as well as at his home in the Town of Cornwall, Orange County. At the conclusion of the trial, defendant was found guilty as charged and sentenced to six months in jail and five years’ probation.

Contrary to defendant’s contention on this appeal, we do not find that the verdict was against the weight of the evidence. We are, however, constrained to reverse the judgment of conviction and remit this matter for a new trial because defendant was deprived of a fair trial by the improper admission of both lay and expert testimony.

It is axiomatic that evidence bearing on the "sexual climate” of a household is inadmissible where it does not tend to prove a material element of the crime charged and is introduced simply to demonstrate a predisposition to commit the subject offense (see, People v Mercado, 188 AD2d 941, 943). Here, the People introduced, inter alia, evidence of nudity at defendant’s cabin, the availability of a Playboy magazine, which defendant’s son and his friends were permitted to view, the presence of the books Joy of Sex and Freedom of Women’s Pleasure at defendant’s residence, as well as the fact that defendant’s son and his friends were permitted to go "skinny dipping” in defendant’s swimming pool. Such evidence bore no relationship whatsoever to the crime charged and could only have been aimed at convincing the jury of defendant’s sexual proclivity. Such testimony was clearly prejudicial and can hardly be considered harmless inasmuch as the determination of guilt or innocence rested primarily on a determination of the respective credibility of defendant and the victim (see, People v Vitoria, 160 AD2d 499).

It is now well established that expert testimony concerning "abused child syndrome” may be admitted to explain a victim’s behavior that might otherwise appear unusual to the average jury (see, People v Taylor, 75 NY2d 277, 288). For example, expert testimony has been permitted to explain why a victim did not promptly complain (see, People v Bennett, 169 AD2d 369, 374, affd 79 NY2d 464), why a victim was unwilling to admit that she had been raped (see, People v Whitehead, 142 AD2d 745, 746) or why a victim may be reluctant to reveal the crime (see, People v Benjamin R., 103 AD2d 663, 668-669). However, expert testimony is inadmissible when it inescapably bears solely upon proving that the crime charged occurred (see, People v Banks, 75 NY2d 277).

While the expert’s testimony in the case at bar concededly was admitted to explain the victim’s failure to promptly report the incident, a clearly proper purpose, much of the testimony was elicited for the unmistakable purpose of demonstrating that the victim had been sodomized. Indeed, at one point the People’s expert, Paul Etu, testified that "any one of these [behavioral changes of the victim] might not be indicative of sexual abuse * * * but looking at the pattern they all fit somebody that has been sexually traumatized”. Any lingering doubt as to the purpose of such testimony is removed when one looks at the statement of the prosecutor on summation, where she asserted, "So you heard about all those [behavioral] changes * * * from Dr. Etu * * *. Every one of those things are the kind of things you would expect to see. That’s what he told you.”

In spite of the clear error regarding the expert’s testimony, the People assert that the issue is unpreserved for review because defendant failed to object. We disagree. During testimony of the victim’s father concerning certain behavioral changes of the victim, counsel for defendant registered an objection following which there was a conference in chambers. At that conference counsel asserted, inter alia: "[In People v Taylor (75 NY2d 277, supra)], the Court of Appeals * * * said that evidence of [r]ape [t]rauma [s]yndrome is inadmissible when it inescapably bears solely on proving, in this instance, a rape occurred here. * * * [The victim’s father] is reciting * * * testimony for the purposes of [—] I guess, dignifying the testimony of Dr. Etu. So this is offered as part and parcel of the [r]ape [t]rauma [s]yndrome testimony, * * * not to explain the actions of [the victim] * * * but for the prohibited purpose which is to prove the occurrence of the event complained of.” County Court, in response to that objection stated, "I don’t find that to be the case.”

In our view, while counsel’s objection was tardy in that it came after the direct examination of Etu, counsel nevertheless made it clear that he viewed Etu’s testimony as objectionable, as well as that of the lay witnesses who were testifying to facts that supported the hypothetical questions put to Etu, and it is equally clear that County Court rejected his objection and request for a mistrial on that ground. In any event, even assuming that the People are correct that defendant did not interpose a timely and/or properly enunciated objection to the complained of testimony, this clearly is the kind of case where we are called upon to entertain the cited error in the interest of justice (see, People v McGill, 47 AD2d 961, 962; CPL 470.15 [6] [a]). As alluded to previously, because resolution of this case rested almost entirely on a determination of the respective credibility of defendant and the victim, the enormous prejudice generated by this testimony mandates a reversal. In light of this conclusion, we need not address the remaining issues raised by defendant.

Mikoll, J. P., Mercure and Yesawich Jr., JJ., concur.