OPINION OF THE COURT
Mahoney, J.
This is an appeal from a judgment of the County Court of Rensselaer County, entered January 6, 1977, upon a verdict convicting defendant of sexual abuse in the first degree (Penal Law, § 130.65).
The facts are simple. During the early evening of August 23, 1974, the complainant, a 16-year-old girl, voluntarily entered defendant’s automobile in the City of Albany and was driven across the Hudson River to the County of Rensselaer and, then, to an isolated spot where, according to complainant, defendant took certain sexual liberties after threatening her with a knife and tying her hands and feet. The defendant denied using a knife and tying complainant and, further, testified that the encounter was initiated by complainant who made suggestive comments and gestures while they were riding in the car. In support of his position, defendant testified that he gave complainant a dime to call her parents after he had driven her to the Rensselaer Railroad Station after the events described above and, further, that complainant wrote her name, room number and telephone number, on a piece of paper and gave it to defendant. The complainant admitted that defendant gave her the coin to call home and the paper containing the information recited above which was received into evidence and not rebutted.
The defendant contends (1) that the prosecution’s cross-examination of him concerning four other incidents similar to the sexual abuse count of the indictment constituted reversible error, (2) that the court’s refusal to suppress complainant’s in-court identification was error, (3) that a certain oral statement was improperly admitted in evidence, (4) that it was error not to suppress a certain pretrial written statement, (5) that the People failed to prove "forcible compulsion” beyond a reasonable doubt and (6) that he should not have been sentenced as a second offender.
[407]*407Contentions (2) through (6) may be disposed of readily and serially.
Since the complainant had made two out-of-court photographic identifications and a lineup identification of defendant, defendant moved to suppress complainant’s in-court identification on the ground that such identification was necessarily "tainted” by the out-of-court procedures. This contention must be rejected. Even if we were to concede that the lineup identification was violative of defendant’s right of due process because it improperly suggested to complainant that she had chosen the "right” man at the two prior photographic identifications, the fact that complainant had ample opportunity to observe the defendant at the time of the sexual assault gives to her in-court identification that degree of invulnerability needed to establish that such identification had a sufficient basis independent of and untainted by the illegal lineup (People v Ramos, 42 NY2d 834; People v Kruk, 52 AD2d 969).
The People must give a defendant pretrial notice of their intention to use statements specified in CPL 710.30 (subd 1), or prove "good cause” for failure to give such notice. However, the People’s failure to do either herein is not reviewable in the absence of any objection on the ground of involuntariness to the introduction of defendant’s oral statement (CPL 470.05, subd 2; 470.15, subd 1), and there is no sound reason why we should consider this point raised for the first time on appeal (CPL 470.15, subd 3, par [c]; subd 6, par [a]; see People v Musolino, 54 AD2d 22).
Next, the defendant’s contention that his written statement should have been suppressed on the ground of involuntariness (People v Huntley, 15 NY2d 72) is without merit. While the record suggests that the police made some implied threats, it is equally clear from the record that the Miranda warnings were given before questioning and defendant made a valid waiver of his right to remain silent and his right to the advice of an attorney.
"Forcible compulsion” is defined (Penal Law, § 130.00, subd 8) as "[P]hysical force that overcomes earnest resistance; or a threat, express or implied, that places a person in fear of immediate death or serious physical injury” (emphasis supplied). On the basis of complainant’s testimony that defendant threatened to slit her throat, the jury could have found beyond a reasonable doubt that defendant subjected complainant to sexual contact by "forcible compulsion” under either [408]*408definition of that term (see People v Connor, 126 NY 278). This result is not changed because the jury found defendant not guilty of assault in the third degree. One commits assault in the third degree when "[W]ith intent to cause physical injury to another person, he causes such injury to such person” (Penal Law, § 120.00, subd 1). (Emphasis supplied.) Subdivision 9 of section 10.00 of the Penal Law states that " 'Physical injury’ means impairment of physical condition or substantial pain”. The jury could have concluded that the physical force used against complainant overcame her "earnest resistance” or was such a threat that it placed complainant "in fear of immediate death or serious physical injury”, but that such force, in fact, did not impair her physical condition or cause her substantial pain.
Since defendant was previously convicted in Alaska of the crimes of assault with a dangerous weapon and rape, crimes for which a sentence in excess of one year could be imposed in New York State (Penal Law, § 70.06, subd 1), he was properly sentenced as a second felony offender (People v Parker, 41 NY2d 21).
Lastly, we turn to the most troublesome of defendant’s contentions, i.e., that it was reversible error for the People to inquire during cross-examination of the defendant as to four prior incidents (bad acts) similar to the sexual abuse charge. While it is true, as defendant argues, that this court may reverse a conviction as a matter of discretion in the interests of justice where a cross-examination deprives a defendant of a fair trial (CPL 470.15, subd 3, par [c]; People v Robinson, 36 NY2d 224, 228-229), even where, as here, defense counsel failed to object to the cross-examination, this discretionary right must be cautiously exercised to insure against the substitution of appellate advocacy for trial strategy. Here, the defendant’s attorney made a pretrial motion to suppress a 1965 assault and rape conviction in the State of Alaska (People v Sandoval, 34 NY2d 371). The court granted the motion. At the same time, defendant’s attorney, orally contending that he was unaware of any other criminal, vicious or immoral acts committed by the defendant, moved for an order directing the People to inform the defendant of any previous criminal, vicious or immoral acts which they intended to use in cross-examination if defendant should take the stand. The prosecution refused to divulge the information and the court denied the motion, except that it directed that defendant be [409]*409provided with his arrest record, the so-called "rap” sheet (see Matter of Legal Aid Soc. of Suffolk County v Mallon, 47 AD2d 646). We conclude that the prosecution was under no duty to open its file to the defendant in the absence of any particularization in defendant’s oral motion for information concerning prior "bad acts”. This court, citing People v Duffy (36 NY2d 258, 263) and People v Sandoval (supra), stated in People v Poole
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
Mahoney, J.
This is an appeal from a judgment of the County Court of Rensselaer County, entered January 6, 1977, upon a verdict convicting defendant of sexual abuse in the first degree (Penal Law, § 130.65).
The facts are simple. During the early evening of August 23, 1974, the complainant, a 16-year-old girl, voluntarily entered defendant’s automobile in the City of Albany and was driven across the Hudson River to the County of Rensselaer and, then, to an isolated spot where, according to complainant, defendant took certain sexual liberties after threatening her with a knife and tying her hands and feet. The defendant denied using a knife and tying complainant and, further, testified that the encounter was initiated by complainant who made suggestive comments and gestures while they were riding in the car. In support of his position, defendant testified that he gave complainant a dime to call her parents after he had driven her to the Rensselaer Railroad Station after the events described above and, further, that complainant wrote her name, room number and telephone number, on a piece of paper and gave it to defendant. The complainant admitted that defendant gave her the coin to call home and the paper containing the information recited above which was received into evidence and not rebutted.
The defendant contends (1) that the prosecution’s cross-examination of him concerning four other incidents similar to the sexual abuse count of the indictment constituted reversible error, (2) that the court’s refusal to suppress complainant’s in-court identification was error, (3) that a certain oral statement was improperly admitted in evidence, (4) that it was error not to suppress a certain pretrial written statement, (5) that the People failed to prove "forcible compulsion” beyond a reasonable doubt and (6) that he should not have been sentenced as a second offender.
[407]*407Contentions (2) through (6) may be disposed of readily and serially.
Since the complainant had made two out-of-court photographic identifications and a lineup identification of defendant, defendant moved to suppress complainant’s in-court identification on the ground that such identification was necessarily "tainted” by the out-of-court procedures. This contention must be rejected. Even if we were to concede that the lineup identification was violative of defendant’s right of due process because it improperly suggested to complainant that she had chosen the "right” man at the two prior photographic identifications, the fact that complainant had ample opportunity to observe the defendant at the time of the sexual assault gives to her in-court identification that degree of invulnerability needed to establish that such identification had a sufficient basis independent of and untainted by the illegal lineup (People v Ramos, 42 NY2d 834; People v Kruk, 52 AD2d 969).
The People must give a defendant pretrial notice of their intention to use statements specified in CPL 710.30 (subd 1), or prove "good cause” for failure to give such notice. However, the People’s failure to do either herein is not reviewable in the absence of any objection on the ground of involuntariness to the introduction of defendant’s oral statement (CPL 470.05, subd 2; 470.15, subd 1), and there is no sound reason why we should consider this point raised for the first time on appeal (CPL 470.15, subd 3, par [c]; subd 6, par [a]; see People v Musolino, 54 AD2d 22).
Next, the defendant’s contention that his written statement should have been suppressed on the ground of involuntariness (People v Huntley, 15 NY2d 72) is without merit. While the record suggests that the police made some implied threats, it is equally clear from the record that the Miranda warnings were given before questioning and defendant made a valid waiver of his right to remain silent and his right to the advice of an attorney.
"Forcible compulsion” is defined (Penal Law, § 130.00, subd 8) as "[P]hysical force that overcomes earnest resistance; or a threat, express or implied, that places a person in fear of immediate death or serious physical injury” (emphasis supplied). On the basis of complainant’s testimony that defendant threatened to slit her throat, the jury could have found beyond a reasonable doubt that defendant subjected complainant to sexual contact by "forcible compulsion” under either [408]*408definition of that term (see People v Connor, 126 NY 278). This result is not changed because the jury found defendant not guilty of assault in the third degree. One commits assault in the third degree when "[W]ith intent to cause physical injury to another person, he causes such injury to such person” (Penal Law, § 120.00, subd 1). (Emphasis supplied.) Subdivision 9 of section 10.00 of the Penal Law states that " 'Physical injury’ means impairment of physical condition or substantial pain”. The jury could have concluded that the physical force used against complainant overcame her "earnest resistance” or was such a threat that it placed complainant "in fear of immediate death or serious physical injury”, but that such force, in fact, did not impair her physical condition or cause her substantial pain.
Since defendant was previously convicted in Alaska of the crimes of assault with a dangerous weapon and rape, crimes for which a sentence in excess of one year could be imposed in New York State (Penal Law, § 70.06, subd 1), he was properly sentenced as a second felony offender (People v Parker, 41 NY2d 21).
Lastly, we turn to the most troublesome of defendant’s contentions, i.e., that it was reversible error for the People to inquire during cross-examination of the defendant as to four prior incidents (bad acts) similar to the sexual abuse charge. While it is true, as defendant argues, that this court may reverse a conviction as a matter of discretion in the interests of justice where a cross-examination deprives a defendant of a fair trial (CPL 470.15, subd 3, par [c]; People v Robinson, 36 NY2d 224, 228-229), even where, as here, defense counsel failed to object to the cross-examination, this discretionary right must be cautiously exercised to insure against the substitution of appellate advocacy for trial strategy. Here, the defendant’s attorney made a pretrial motion to suppress a 1965 assault and rape conviction in the State of Alaska (People v Sandoval, 34 NY2d 371). The court granted the motion. At the same time, defendant’s attorney, orally contending that he was unaware of any other criminal, vicious or immoral acts committed by the defendant, moved for an order directing the People to inform the defendant of any previous criminal, vicious or immoral acts which they intended to use in cross-examination if defendant should take the stand. The prosecution refused to divulge the information and the court denied the motion, except that it directed that defendant be [409]*409provided with his arrest record, the so-called "rap” sheet (see Matter of Legal Aid Soc. of Suffolk County v Mallon, 47 AD2d 646). We conclude that the prosecution was under no duty to open its file to the defendant in the absence of any particularization in defendant’s oral motion for information concerning prior "bad acts”. This court, citing People v Duffy (36 NY2d 258, 263) and People v Sandoval (supra), stated in People v Poole (52 AD2d 1010, 1011) that "[T]he burden was upon the defendant to inform the court of the prior misconduct which might unfairly affect him as a witness in his own behalf.” The defendant had a right under the Sandoval ruling to a pretrial determination of the propriety of the use by the prosecution on cross-examination of all of his prior "bad acts” which he chose to inform the court about. He was successful in removing from the case the 1965 conviction of assault and rape because he identified it and proved its prejudicial consequence if used at trial. For whatever reason, he chose not to identify the four other prior "bad acts” and cannot now be heard to complain, particularly since he did not object to their use at trial.
The judgment should be affirmed.
The court granted a trial order of dismissal of Count No. 1 of the indictment (Penal Law, § 135.20 [kidnapping in the second degree]) and the jury acquitted defendant of Count No. 3 of the indictment (Penal Law, § 120.00 [assault in the third degree]).