People v. Ruiz , 71 A.D.2d 569 ( 1979 )

Judgment, Supreme Court, Bronx County, rendered November 4, 1977, after a jury trial, convicting the defendant of rape in the first degree and sodomy in the first degree, reversed, on the law and as a matter of discretion in the interest of justice, and the matter remanded for a new trial. The defehdant was indicted for the crimes of rape in the first degree and sodomy in the first degree performed on Wanda, the 12-year-old daughter of defendant’s "common-law” wife on the evening of November 18, 1976. Wanda, the victim, was the main prosecution witness at the trial. She testified that the defendant had come into her room, put her sister Celia on the floor on her knees, facing away from the door, took the victim to his room while holding one hand on her mouth, and in the room he raped and sodomized her. As defendant carried the complaining witness through the apartment, she noticed her mother on the floor, apparently drunk. Wanda did not complain to anyone about the occurrence until three days later, on November 21, 1976. Testimony regarding the medical examination held on November 21 disclosed that a laceration was present which was inconclusive on the issue of whether intercourse took place. The testimony of the 12 year old was remarkable in that many questions asked on cross-examination were met with either no response at all or the response "I don’t know.” These questions were not peripheral, but rather were directed at when the victim first complained about the rape, with whom she discussed the rape, and what she observed at the time of the occurrence. This unresponsiveness must be coupled with another consideration. Defense counsel made an offer of proof to the court in order to allow cross-examination of the complainant regarding acts of sexual intercourse between the complainant and one Garcia (CPL 60.42, subd 5). The mother of the complainant allegedly also had intercourse with Garcia. The court foreclosed examination in this regard. It was urged by defense counsel that this testimony would establish that the complainant’s description of sexual intercourse was not that of an innocent who only had this one experience. Her testimony describing the intercourse would therefore be less credible, since the jury could infer that she was drawing on her other sexual experience to describe what occurred. Furthermore, the intercourse of the mother with Garcia was necessary to explain the three-day hiatus in reporting to the police. Defendant’s argument would have been that he had a dispute with Wanda’s mother about her sexual activities with Garcia. The mother had Wanda press charges in retaliation for that quarrel. The sparseness of Wanda’s testimony, coupled with the barring of the proof offered by defendant, warrants reversal and remand for a new trial in the interest of justice. Concur—Lane, Lupiano and Bloom, JJ.