Monday's NY Blawg Round Up
Define That Term #99

Second Department Reverses Conviction

In People v. Ocampo, 2006 NY Slip Op 02921, a jury found the defendant guilty of two counts of Sodomy in the First Degree, Aggravated Sexual Assault in the Second Degree,and Unlawful Imprisonment in the First Degree arising from allegations that the defendant was involved in a sexual encounter with an 18-year old illegal alien.   

The defendant's theory was that the complainant initiated the consensual encounter and sought money from the defendant in exchange for sex.  The trial court refused to allow defense counsel to question the complainant about the statements that led up to the encounter.  But, the court advised the defense counsel could ask the defendant about the statements, but then refused to allow the testimony on the grounds that the statements constituted inadmissible hearsay.

The Second Department concluded that the evidence was improperly excluded by the trial court, that the excluded testimony was neither speculative nor cumulative, and that the error was not harmless.  The Court stated that:

Proof aimed at establishing a motive to fabricate is never collateral and may not be excluded on that ground, but examination of witnesses to establish such a motive must proceed upon some good-faith basis...

Because the only two witnesses to the sexual encounter were the defendant and the complainant, whose stories differed markedly, this case turned solely on credibility. The jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on [the complainant's] testimony.  (Internal citations and quotations omitted.)

Accordingly, the Court reversed the judgment and ordered a new trial.

In my opinion, the Second Department's decision was clearly correct.  This evidence was pivotal to the defense proffered and the trial court's rulings on this issue are more than a bit circular and placed the defense in a lose-lose situation.  It seems so clear cut that I wonder if I'm missing a piece of the puzzle.  But then again, stranger things have been known to happen at trial.

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