The opinion of the court was delivered by: Ciparick, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
The issue raised by this appeal is whether County Court improperly deprived defendant of his right to present testimony that complainant had a bad reputation in the community for truth and veracity. We hold that the trial court's decision to exclude such testimony on foundational grounds was an abuse of discretion as a matter of law.
In April 2008, a grand jury charged defendant with course of sexual conduct against a child in the first and second degrees (Penal Law §§ 130.75  [a]; 130.80  [a]), rape in the first degree (Penal Law § 130.35 ), sexual abuse in the first and second degrees (Penal Law §§ 130.65 ; 130.60 ), and endangering the welfare of a child (Penal Law § 260.10 ). The indictment alleged that from August 2005 to December 2005, defendant, who was 17 years old at the time, engaged in sexual conduct with complainant, his then eight-year-old niece. During the relevant time period, defendant resided with his parents, Juan Collazo and Ramona Fernandez, at their home. The allegations set forth in the indictment purportedly took place there, inside defendant's second-floor bedroom.
Defendant proceeded to trial before a jury, which heard conflicting testimony concerning the events in question. Complainant, age 11 at the time of trial, testified that, between August and December 2005, she visited defendant's home more than five times. Her visits to defendant's home typically coincided with weekends and holidays when other members of her family, including complainant's older sister, gathered. Complainant explained that although Ramona Fernandez was her biological great aunt, she referred to her as her grandmother. She similarly called Collazo her grandfather.
On direct examination, complainant recounted that, on at least three occasions between August and December 2005 (but possibly more), she and defendant were alone in his upstairs bedroom. Complainant recalled that, during the first incident, defendant pushed his dresser in front of the bedroom door, undressed himself, and removed her clothing. While complainant sat on his bed, defendant touched and kissed every intimate part of her body. Defendant also allegedly inserted his penis into complainant's mouth, vagina, and buttocks. Complainant testified that defendant instructed her not to tell anyone about the events that had just transpired. She felt threatened by defendant's admonition and was afraid that defendant would hurt her if she disclosed what had happened.
Complainant's testimony regarding other purported encounters, however, was much less precise. For example, while complainant asserted definitively that defendant disrobed himself and removed her underpants in a second incident, she could not remember any other details. She estimated that the two were alone in defendant's bedroom for about five minutes when her older sister knocked on the door and asked for defendant. After repeatedly knocking for about a minute, complainant's sister, who also testified at trial, entered the room and observed defendant run behind the door and noted that he was not wearing a shirt. Complainant's sister also saw complainant lying in defendant's bed underneath the covers with only her face exposed.
Sometime after December 2005, complainant composed a letter to defendant, which the court admitted into evidence, expressing her anger and hatred toward him. In the letter, complainant wrote, in part, "Why did you hurt me when I was younger? Why did you do that to me? Why did you pick me?" Complainant testified that she was uncertain whether defendant received her letter, but that her intent in writing the letter was to confront him. In the summer of 2007, complainant, for the first time, confided in her sister and cousins. Complainant acknowledged that these family members initially did not believe her. Several months later, in early 2008, she also told her parents and one of her aunts about defendant's alleged sexual abuse. She informed the jury that her reason for not coming forward sooner was that she feared her father would no longer allow her to visit her grandparents.
Defendant, on the other hand, testified that complainant had visited his home on only two occasions between August and December 2005, once for Thanksgiving and once on Christmas. For Thanksgiving, defendant recollected that there was an "entire house full" of relatives and that complainant spent the weekend there. Defendant highlighted that he never had occasion to be alone in his upstairs bedroom during the Thanksgiving holiday weekend. At Christmas, defendant recounted that complainant merely stopped by the house to retrieve her presents and did not stay overnight. Defendant denied that he had engaged in any sexual conduct with complainant. Moreover, he explained that his parents had a house rule, which prohibited a child from going upstairs unless he or she had to use the bathroom, in which case, the child had to advise an adult. Finally, defendant described that complainant was not "the easiest person for me to deal with" and "bothersome."
Defendant's parents also testified on his behalf. They corroborated defendant's testimony that the only two times complainant visited their home during the period alleged in the indictment was during the Thanksgiving and Christmas holidays. Collazo and Ramona Fernandez also confirmed that they generally did not permit any of the children who visited their home to go upstairs. In addition to their factual testimony, defense counsel sought to introduce testimony from both Collazo and Ramona Fernandez that complainant -- who they considered their granddaughter -- had a reputation for untruthfulness among their family and family friends. To that end, Collazo testified that he had known complainant for all of her life and that he had regular contact with her. Collazo also testified that he had heard practically all 25 to 30 members of his family, many of whom he identified, discuss complainant during the time he knew her. Although he could not specify the number of conversations that he overheard, he was aware of complainant's reputation for truthfulness among the family. When defense counsel asked Collazo to state that reputation, County Court sustained the People's objection to this question on the ground that defense counsel had not laid a proper foundation.
Similarly, Ramona Fernandez testified that she knew complainant since birth and that all of her family members, including her sisters and nieces, watched her grow up. She explained that her family and family friends "always talk[ed] about the children" when they were around and that, at times, they specifically discussed complainant's reputation for truthfulness. Again, when defense counsel asked the witness to state what that reputation was, the People objected and argued both improper foundation and that complainant's family members and friends did not constitute "a community at all." County Court sustained the objection, precluding further testimony.
The jury convicted defendant of first and second degree sexual abuse and endangering the welfare of a child, but acquitted him of the more serious charges of first degree rape and first and second degree course of sexual conduct against a child. Defendant moved to set aside the verdict pursuant to CPL 330.30, contending that the trial court erred in precluding the defense from eliciting testimony regarding complainant's reputation in the community for truth and veracity.
In a written decision, the trial judge denied the motion and adhered to its evidentiary rulings at trial, reasoning that "because  defendant did not establish the 'quality' of the community member[s'] associations with [complainant], he failed to establish the reliability of his proposed witnesses' testimony or lay a foundation for its introduction into evidence." Following the court's denial of defendant's CPL 330.30 motion, he was sentenced to an aggregate term of four months jail followed by ten years probation. Pending appeal, defendant applied for a stay in the execution of his sentence, which the Appellate Division granted.
The Appellate Division, with two Justices dissenting in part, reversed the judgment of conviction and sentence. As a threshold matter, the court concluded that defendant's conviction for second degree sexual abuse must be reversed and that count of the indictment dismissed because it was "an inclusory concurrent count of the one charging him with sexual abuse in the first degree" (People v Fernandez, 74 AD3d 1379, 1380 [3d Dept 2010]).*fn1
The court further held that "County Court improperly precluded [defendant] from presenting testimony of two family members regarding the complainant's reputation in their family for untruthfulness" (id.). Specifically, the court reasoned that, contrary to the trial court's conclusion, the testimony elicited from Collazo "provided an adequate foundation for the reputation testimony" (id. at 1381). Moreover, the court noted that the trial court erred in precluding Ramona Fernandez's testimony "on the basis that the family was not a community for purposes of reputation testimony" (id.). Finally, the ...