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PEOPLE STATE NEW YORK v. CHARLES WALLERT (12/20/83)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1983.NY.47205 <http://www.versuslaw.com>; 469 N.Y.S.2d 722; 98 A.D.2d 47 December 20, 1983 THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.CHARLES WALLERT, APPELLANT Appeal from a judgment of the Supreme Court (Edwin Torres, J.), rendered March 10, 1983 in New York County, upon a verdict convicting defendant of rape in the first degree, sodomy in the first degree (two counts), assault in the second degree and sexual abuse in the first degree. Patrick M. Wall of counsel (Oren Root, Jr., with him on the brief; Patrick M. Wall, a Professional Corporation, attorney), for appellant. Bruce Allen of counsel (Mark Dwyer with him on the brief; Robert M. Morgenthau, District Attorney, attorney), for respondent. Carro, J. Murphy, P. J., Ross, Asch and Bloom, JJ., concur. Author: Carro


Appeal from a judgment of the Supreme Court (Edwin Torres, J.), rendered March 10, 1983 in New York County, upon a verdict convicting defendant of rape in the first degree, sodomy in the first degree (two counts), assault in the second degree and sexual abuse in the first degree.

Carro, J. Murphy, P. J., Ross, Asch and Bloom, JJ., concur.

Author: Carro

 OPINION OF THE COURT

Two days after a jury had convicted him of first degree rape and related crimes, defendant was served with a summons and complaint in a civil action for $18,000,000 damages arising from the rape incident. Although the prosecutor knew prior to the trial that the complainant had consulted an attorney who was but awaiting the outcome of the criminal action, the prosecutor felt no duty to disclose this information to defendant's counsel. (See Brady v Maryland, 373 U.S. 83.) Defendant made a CPL 330.30 motion to set aside the verdict, which was denied without opinion. Defendant was subsequently sentenced and, on appeal here, argues that the People had a constitutional duty to disclose knowledge of the civil suit prior to trial, and further, that the introduction into evidence, over objection, of a blown-up mug shot without any foundation having been laid was reversible error. We agree that the photograph should not have been admitted in the uncorroborated fashion it was, and that on the facts of this case defendant was denied due process of law by the failure of the prosecutor to disclose his knowledge of the civil suit while arguing in summation that defendant could point to no motive for the complainant to lie.

Defendant and the complainant met at Great Adventure Amusement Park where the latter was a dancer in a show. They exchanged numbers and on July 20, 1982 went on a date. After seeing a Broadway musical they went to dinner, where they were joined by a friend of Wallert. He remained with them the rest of the evening and around 3:00 or 4:00 a.m. the limousine took all three to Wallert's apartment. The complainant testified that the friend soon left, after which the defendant sexually attacked her, using a razor blade, brute force and the threat of a gun to strip and attempt an assault which, she claimed, he was actually unable to fully perform. She stated that at one point he punched her in the mouth and she managed to scratch him on the cheek, drawing blood. Ultimately however, defendant calmed down and the two left the apartment together about 11:00 a.m., she getting into a cab and going to a friend's apartment.

Wallert's version was, of course, somewhat different. He testified that the three ended up at his apartment at the complainant's insistence, not his, and that she refused to leave when his friend did. Instead, she kept him up the rest of the night with a depressing monologue of her bitterness for her show business experiences, until an 8:00 a.m. wake-up call prompted him to get dressed for work. Defendant testified that they left together about half an hour later, with him giving her cab fare to go home.

Obviously in cases of this sort the focus is on discrepancies in detail and the credibility of both parties. Witnesses for defendant placed him at a business meeting that morning, thus verifying his time of departure from the apartment. Further, an officer, who interviewed the complainant later that ...


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