People v. Shields , 58 A.D.2d 94 ( 1977 )

O’Connor, J.

The defendant appeals from a judgment of the Supreme Court, Queens County, rendered November 14, 1974, convicting him, upon a jury verdict, of rape in the first degree and sentencing him to a term of imprisonment with a minimum of 10 years and maximum of 20 years. The judgment should be affirmed.

The record indicates that at about 9:15 o’clock on the evening of the 12th day of December, 1973, the complainant was on her way home from work. The complainant, a high school student who was employed during after school hours as a dental assistant, was then 17 years of age. While riding on the bus which took her to her home, she noticed a fellow passenger who was eating Chinese food and who stared at the bottom of her pants in a most peculiar fashion. She then identified that passenger as the defendant-appellant.

As she alighted from the bus, she noticed that the defendant followed her but that he started to cross the street away from her. Suddenly he reversed his direction, came to the complainant and grabbed her by the arm and by the hair. The complainant screamed and was promptly thrown into the adjacent bushes, where the defendant placed a hand over her mouth and threatened to stab her with a knife. She was dragged to the rear of the house where she was forcibly raped twice by the defendant, who also compelled her to commit an act of oral sodomy upon him.

Then the defendant walked the complainant out to the street, only to be met by the complainant’s stepfather (hereafter father) who, alarmed at his daughter’s failure to arrive home on time, was touring the neighborhood in his automobile. The complainant was shaking and trembling and, in response to the father’s question, she screamed: "He raped me.” The father grabbed the defendant and the complainant jumped into the car, drove the short distance to her home and called the police.

As Officer Brown was leading the complainant out of her home to go to the hospital, she saw and, with a shriek, promptly identified the defendant, who was seated in a police radio car. The testimony given as to that identification indeed was bolstering, but, in view of the defendant’s apprehension and the identification by the father at the scene of the alleged crime, it is of minimal significance.

The hospital examination and subsequent laboratory tests confirmed the presence of semen in the complainant’s underclothes.

The father testified that he seized the defendant and tussled and fought with him for some 15 to 20 minutes before the police arrived. At one point in the course of the struggle, the defendant exclaimed: "So I did it, so what, so kill me.” It was the father’s testimony that from the time he first came upon the defendant holding the complainant by the arm as they crossed the street from the scene of the crime, until the police arrived, he never lost sight of the defendant, whom he later identified in court.

The pressing points presented upon this appeal are (1) that the "highly personalized and inflammatory summation” by the prosecutor demands reversal and (2) that the denial by the trial court of a Sandoval motion insofar as it sought to bar cross-examination for impeachment purposes of the defendant’s 10-year-old conviction on an assault with intent to rape charge was such an abuse of discretion as to mandate reversal.

We reject both points and affirm the judgment of conviction.

I

As to the prosecutor’s summation: the summation is lengthy, covering some 27 pages of the record. In the main it keeps well within the proper guidelines established for a prosecutor’s closing statement. It is the defendant’s contention, however, that the cumulative impact of several manifestly improper utterances warrant a reversal. We do not agree. Unquestionably, several of the Assistant District Attorney’s statements were unnecessary and unfortunate, i.e.: "I have never tried a case where the evidence was so clear and convincing.” And again, his theme, which was stated twice: "If it wasn’t for her father, I told you before, being there at the exact right time, he wouldn’t have been here. Probably he would have gotten away. It would have been another one we didn’t get.” To these potentially inflammatory statements, no proper objection was taken and, hence, such claims of error have not been preserved for review on appeal.

Moreover, it is quite clear that these utterances hardly amounted to the "verbal crudities and rantings” which both inflame the jury and degrade the People and which are roundly to be condemned and quickly to be reversed (cf. People v Brosnan, 32 NY2d 254, 274). We therefore conclude that although the prosecutor’s remarks were totally out of order, they clearly did not rise to that level of misconduct which would form the basis for reversal.

In People v Brosnan (supra) in an outrageously inflammatory summation, the prosecutor characterized the defendant as "a liar, an animal, a beast” and stated "that the victim sustained the serious injuries she received because she could not respond to his sexual and animalistic desires” (p 262). There the court characterized the summation as "largely argument by epithet rather than by logic” (p 261). With it all, the court sustained the conviction and observed (p 262): "The District Attorney accepts the criticism that the summation was improper, but, on any view, it was hardly of sufficient forcefulness to influence the jury in the light of the overwhelming evidence and the stark facts of the brutal, irrational crime committed.” The court concluded (p 262): "In this case, it is at most only arguable that the prosecutor’s misconduct could háve produced a greater adverse effect on the jury then did the bizarre facts of the crime, and the overwhelming evidence of culpability.”

II

As to the denial of the Sandoval motion, the record discloses that the court granted the motion as to several prior convictions but denied it as to a 1964 conviction of assault with intent to rape and a 1966 conviction of larceny of an automobile.

It is of course axiomatic that the scope of cross-examination always rests in the sound discretion of the trial court (People v Duffy, 36 NY2d 258; People v Schwartzman, 24 NY2d 241; People v Sorge, 301 NY 198); yet it is manifest that the current and laudable trend is to strike a proper balance between the probative value of a prior criminal record and the danger of prejudice that such disclosure presents to an accused (People v Sandoval, 34 NY2d 371). While it is clear that there existed valid grounds for denying the motion as to the larceny conviction, it is equally apparent that its denial as to the assault-rape conviction was an improvident exercise of discretion which under other and ordinary circumstances might mandate reversal.

Although this prior conviction showed "a demonstrated determination deliberately to further self-interest at the expense of society * * * [and] goes to the heart of honesty and integrity” (People v Sandoval, supra, p 377), it was but one month short of 10 years of age. Involving, as it did, an act of impulsive violence, identical to the crime before the court, its use on cross-examination might well appear to have no other purpose than to show that the defendant "is of a criminal bent or character and thus likely to have committed the crime charged” (People v Schwartzman, supra, p 247). This, indeed, could be highly prejudicial.

To this extent, error was committed. However, keeping in mind these well-recognized but deliberately imprecise guidelines, let us now seek to apply them to the fact pattern here involved. First of all, it is not at all that clear that it was this Sandoval decision that prevented the defendant from taking the stand in his own defense. The defendant found himself in an utterly untenable and totally impossible position. His reasons for not taking the stand are at best speculative. Would he not better remain mute than to expose himself to the searing and searching cross-examination which would probe his reasons for being in the immediate neighborhood of the complainant’s home, far away from his place of residence; how would he justify his attempt at flight when confronted by an irate father; his altercation and struggle with the father; and above all his statement: "So I did it, so what, so kill me”. Other than with a flat denial, how was he to explain away the inexorable conclusion contained in that damning admission of guilt? In addition, the defendant would be hard put to explain away the prior felony conviction on the larceny charge. It is a compelling thought that perhaps the defendant’s deliberately chosen posture was not to testify at all, Sandoval or no!

Recently this court, in a closely analogous situation, spoke as follows (People v Watson, 57 AD2d 143, 149-150): "We have considered the possible effect of the defendant’s failure to testify by reason of the impact that the previous rape conviction would have had in impeaching his testimony, and find such effect to have been negated by the burden of proof which rests upon the prosecution, particularly where the charge is rape (see People v Stewart, 85 Misc 2d 385, 390; cf. People v Poole, 52 AD2d 1010).”

Although it is far from the sole or absolute test, we must conclude, on balance, that the guilt of the defendant was clearly established not only beyond a reasonable doubt, but well beyond any conceivable doubt and, under these circumstances, to compel a 17-year-old girl and her family to undergo again the agony and the trauma of another sordid rape trial would indeed be to exalt form over substance.

Limited entirely to the facts before us, we conclude that the denial of the Sandoval motion as to the assault-rape conviction, although an improvident exercise of discretion, was not, in the totality, of sufficient moment to, and does not of necessity warrant, a reversal. On balance, a new trial is not here required because it would be useless. We have considered and found to be without merit the other claims of the defendant.

The judgment should be affirmed.