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The People &C v. Angel Rosario

October 18, 2011


The opinion of the court was delivered by: Read, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

The issue for us to decide in these two cases is whether prior consistent statements alleging sexual abuse were properly admitted under the prompt outcry rule or, alternatively in the Rosario case, to rebut a claim of recent fabrication. In both appeals, we affirm the Appellate Division, which concluded that the prior consistent statement was inadmissible in Rosario, and admissible in Parada.

I. Rosario

Complainant, who was 17 at the time of trial, testified that her father, defendant Angel Rosario, began to abuse her sexually when she was about nine years old. Over the next four or five years, he would frequently rub his body against hers when he encountered her alone in the family's apartment, pressing his penis against her. He would make complainant perform oral sex on him, and once put his mouth on her vagina when she was in her bedroom, watching the Disney Channel on television. When complainant was 13 years old, defendant penetrated her vagina with his penis. Then in early 2004, when complainant was 14 years old and in 9th grade, she struggled with and resisted defendant when he forced sexual intercourse on her. Complainant says that she told defendant "This is never going to happen again," and that he did not touch her sexually after this encounter. At no time did defendant ejaculate, and, in every instance, the penetration was slight. Complainant did not tell anyone in her extended family*fn1 about defendant's sexual advances because she was scared that she would not be believed and wouldget into trouble, and she was fearful about how her mother would react.

By January 2004, about the time the abuse stopped, complainant had started dating. In May 2004, her boyfriend noticed that she was upset and asked her what was wrong. They were in the school courtyard at the time. Because she "had difficulty saying" what was bothering her, complainant's boyfriend suggested that she write it down. Complainant then took a piece of paper from her book bag and wrote the following note, which she handed to her boyfriend for him to read:

"Well, um I kind of get sexually harassed by my Dad since I was I think 10. And Im not very proud of it --I havent told nebody cause he's my dad n i didn't want him 2 go away and pwease don't tell ne1 & lately ive bin pushing him off n stuff so like yeah please don't say anything."

When complainant's boyfriend responded by "look[ing] at [her] like, are you serious? Can this really happen and why didn't you tell anybody?" she felt "embarrassed and ashamed." Complainant's boyfriend testified that he slipped the note into his pocket, unbeknownst to complainant; she testified that he crumpled up the note and threw it away as they left the courtyard. Complainant was not sure when she wrote the note, but thought it "must have been May" or perhaps "earlier"; her boyfriend asserted that this episode took place in May 2004. He located the thought-to-be-lost note (which was admitted into evidence) in February 2006, and produced it for the district attorney two days before he testified on June 8, 2006.

On June 24, 2005, about a year after she wrote the note, complainant argued with defendant when he refused to let her go to the movies with her boyfriend. Having gotten friendly with police Officers Anthony Flores and Slade Bradley, who ran the Explorers Program sponsored by the New York Police Department,*fn2 complainant stopped by the stationhouse to talk to Officer Flores. When he was not there, she went to the movies with her boyfriend, in defiance of defendant. But once at the movies, she got nervous about getting into "severe trouble" and being "hit" by defendant, a stern disciplinarian who inflicted corporeal punishment when displeased with her behavior.

Before returning home, complainant called Officer Flores (whom defendant had also contacted, fearing that his daughter had run away from home after their argument). Officer Flores picked complainant up at the movies and returned with her to the stationhouse. Once there, complainant spoke with both Officers Flores and Bradley (a woman), telling them that defendant had sexually abused her. According to complainant, she decided to report "what was going on" at that point in time because she was tired of "all of the stuff that went on in [her] house" and did not want to be molested anymore. The officers took complainant to meet with a detective in the Manhattan Special Victims Squad, to whom she repeated her claim of sexual abuse. Defendant was arrested and subsequently indicted for first-degree course of sexual conduct against a child (Penal Law § 130.75 [1] [b] [being at least 18 years old and engaging in two or more acts of sexual conduct over a period of time not less than three months in duration with a child less than 13 years old]), first-degree rape (Penal Law § 130.35 [1] [engaging in sexual intercourse by forcible compulsion]) and other lesser charges.

At trial, defendant denied his daughter's accusations; his wife testified that she had never noticed any change in her daughter's personality or behavior toward defendant. In summation, the defense argued that complainant -- portrayed as a willful only child, angry at defendant for restricting her freedom and anxious about the punishment he would mete out for her disobedience on June 24, 2005 -- embroidered a tale of mistreatment by her father with a claim of sexual abuse (perhaps in response to a suggestive question posed by Officer Bradley) and then found herself "backed into a corner." The jury convicted defendant of all the charges submitted to it, including first-degree course of sexual conduct against a child, and first-and second-degree rape. The trial judge sentenced defendant to an aggregate term of 15 years in prison, to be followed by five years of postrelease supervision.

The Appellate Division reversed the judgment, holding that the note did not qualify as a prompt outcry "in view of the months-long delay between the charged conduct and the writing of the note, especially in the absence of a sufficient explanation for the complainant's not confiding in someone else earlier" (68 AD3d 600, 601 [1st Dept 2009]). The court further concluded that the note was not admissible as a proper rehabilitative response to a defense claim of recent fabrication for two reasons: "It was offered on the People's direct case . . . in the course of the complainant's direct testimony, in anticipation of a defense of recent fabrication"; and at the time "the note was admitted into evidence, the defense had done nothing to specify to the jury . . . when and how the complainant had decided to make a false accusation against defendant [and] could as easily have claimed that the complainant's motivation . . . arose years earlier, in response to defendant's controlling and overbearing conduct over the years, rather than on June 24, 2005" (id. at 602 [emphasis added]). A Judge of this Court granted the People permission to appeal (15 NY3d 809 [2010]).


Complainant testified that defendant Luis Parada sexually abused her when he babysat her after school and during school breaks from mid-2002 until early 2004 at the apartment where she resided with her mother and four brothers and the man with whom her mother then had a relationship, a childhood friend of defendant. Specifically, complainant, who was six or seven when the alleged abuse took place and 11 at the time of trial, testified that defendant twice anally sodomized her, causing rectal bleeding that she once reported to her mother (although not its cause), and also touched and penetrated her vagina with his finger, forced her to touch his penis and would lie on top of her on occasions when he was alone with her, or only her infant brother was also present in the apartment. According to complainant, defendant would tell her not to tell anyone because it was their "secret" or "something bad w[ould] happen." While defendant was still baby-sitting her, though, complainant disclosed to a female cousin, who was one year older, that defendant had "put his front private part in[to her butt]." Complainant made her cousin "pinky promise" not to tell anyone because she "thought they wouldn't believe [her]."

Defendant's baby-sitting duties ended sometime after complainant's mother and his friend broke up in early 2004, and complainant's mother moved in with her brother and sister-in-law, whose children included the cousin in whom complainant had earlier confided. According to complainant's mother, in early 2005, defendant telephoned her, saying that "he wanted to know how the kids were doing and . . . to come over and see [them]." She invited defendant to her brother's apartment, and he offered to take complainant and her younger brother to the Museum of Natural History. Complainant, described by her mother as "more stunned than happy" to see defendant, asked her cousin to go along on this trip because she "did not want to go alone with [defendant]." After the museum visit, complainant let her mother know that she did not want to see defendant again.

In mid-May 2006, complainant revealed to her paternal aunt that defendant had "touched her" when he babysat her. At complainant's insistence, her aunt agreed to keep this a secret. On another occasion, complainant again talked to her aunt about "what [had] happened to her." Then in late June 2006, while mother and daughter were in the kitchen washing and drying the dishes after dinner, complainant's mother initiated a conversation with her about boys, telling complainant "not [to] let[] anyone touch her" or "put their hands on [her] body." She assured complainant that "if anyone ever[] put[] their hands on" her, she should tell her mother, who would protect her. At that point, complainant blurted out that "someone" had already touched her. After her mother mentioned the names of two adult males, complainant "broke down and started crying" and "said it was [defendant]." Complainant's mother contacted the police the next day, and defendant was arrested and eventually indicted for first-degree course of sexual conduct against a child (Penal Law § 130.75 [1] [a] [engaging in two or more acts of sexual conduct over a period of time not less than three months in duration with a child less than 11 years old]).

Prior to defendant's jury trial, the People moved to introduce into evidence complainant's statements to her cousin and aunt about defendant's sexual abuse. Defendant objected that these disclosures did not constitute prompt outcry. The trial judge decided that the testimony could come in, however, and complainant and her aunt testified as described. Defendant took the stand and professed innocence. His expert, a psychiatrist with experience in evaluating child victims of sexual abuse, testified that children may allege molestation to get even with someone in their environment, and sometimes "confabulate" or "introduce fantasy" into their statements. The jury convicted defendant of the charged offense, and Supreme Court subsequently sentenced him to 20 years in prison followed by five years of postrelease supervision.

The Appellate Division, with two Justices dissenting, affirmed the judgment, ruling that the trial judge properly admitted complainant's revelation to her cousin as a prompt outcry because "it was made during the period wherein [complainant] was being sexually abused" (67 AD3d 581, 582 [1st Dept 2009]). The court further concluded that while Supreme Court erroneously admitted complainant's disclosures to her aunt, the error was harmless. Finally, the court declined to reach, in the interest of justice, defendant's unpreserved challenges to the admission of certain prior consistent statements that complainant made to a pediatric nurse who examined her and a detective who interviewed her, and portions of the People's summation and, alternatively, rejected these challenges on the merits or considered any error to be harmless. Further, "[t]o the extent the existing record permit[ted]," the court concluded that defendant received effective assistance of counsel (id. at 583).

The dissenting Justices would have exercised discretion in the interest of justice to decide defendant's unpreserved arguments, which they considered meritorious. In their view, the "cumulative effect" of the various unpreserved and preserved "evidentiary errors on a conviction that rest[ed] essentially on the credibility of an 11-year-old child" was not harmless (id. at 586). A dissenting Justice granted defendant permission to appeal to us.


As a general rule, "evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place" (People v McDaniel, 81 NY2d 10, 16 [1993]). The prompt outcry rule -- an exception to the inadmissibility of the prior consistent statements of an unimpeached witness -- "permits evidence that a timely complaint was made," but does not allow further testimony as to the "details of the incident" (People v Rice, 75 NY2d 929, 931 [1990]).*fn3 In a classic exposition of the original reasoning underlying the prompt outcry rule, the Court stated that "[i]t is a general rule that the evidence of a witness can never be corroborated or confirmed by proof that the witness stated the same facts testified to in court on some occasion when not under oath. Such statements, like all hearsay evidence, are excluded as unsatisfactory and incompetent. But there is an exception to the rule in the case of rape. The outrage in such a case upon a virtuous female is so great that there is a natural presumption that at the first suitable opportunity she would make disclosure of it; and she would be so far discredited if she did not make disclosure, for the purpose of confirming her evidence where she is a witness, such disclosure may be received. But where the disclosure is not recent, as soon as suitable opportunity is furnished, the reason for receiving the evidence does not exist, and the principle justifying its reception does not apply" (People v O'Sullivan, 104 NY 481, 486 [1887] [disclosure made 11 months after the commission of the alleged rape was too remote to qualify as a prompt outcry]).

As we recognized in McDaniel, though, "[t]he contemporary rationale for permitting prompt outcry evidence is that some jurors would inevitably doubt the veracity of a victim who failed to promptly complain of a sexual assault" (McDaniel, 81 NY2d at 16-17).*fn4 Finally, we have made clear that "promptness is a relative concept dependent on the ...

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