This memorandum is uncorrected and subject to revision before publication in the New York Reports.
The order of the Appellate Division should be affirmed. Defendant and his ex-wife are the parents of two daughters. After their divorce, the mother and daughters moved out of state but returned to New York several years later. This allowed defendant to visit his daughters (8 and 13 years of age) on weekends, but his relationship with his older daughter was fraught with difficulties. He constantly argued with her about what he considered her unacceptable behavior and threatened to send her to a "brat camp" if she continued to disregard his admonitions. Their contentious relationship lead to an incident in July 2006, when defendant sought police assistance to locate her since she had not returned to her mother's home the night before. After the police picked her up at the home of a 16-year-old boy, she and defendant had a heated telephone conversation. When the phone call ended, she informed her mother that her father had sexually abused her. The younger daughter later made a similar revelation, leading to defendant's arrest.
At defendant's bench trial, both daughters described their incidents of sexual abuse in detail. On cross-examination, the older daughter admitted that she often argued with her father about boys, her behavior and her attire. During defendant's testimony, he corroborated the friction between himself and his daughter and confirmed that he often discussed sending her to "the Villa," a special school, if she did not change her ways.
Defendant was convicted as charged of sexual abuse in the first degree, rape in the second degree, criminal sexual act in the second degree and endangering the welfare of a child. The Appellate Division affirmed (81 AD3d 1446 [4th Dept 2011]), and a Judge of this Court granted defendant leave to appeal (17 NY3d 796 ).
On appeal, defendant claims that he was deprived of a fair trial because several of the trial court's evidentiary rulings prevented him from adequately establishing his older daughter's motivation to fabricate the charges. In particular, he asserts that the trial judge erred in precluding (1) cross-examination of the older daughter regarding the purportedly sexual nature of her relationship with the 16-year-old boy at whose home she was found; (2) cross-examination about her sexually provocative postings and photos from her MySpace account; and (3) evidence of her tendency to wear what defendant considered to be inappropriate clothing for her age. Defendant claims that this evidence was essential to explaining the increasing discord between himself and his daughter and that its exclusion did not allow him to present a complete explanation of his defense. We disagree.
First, the court did not err in precluding evidence regarding the purportedly sexual nature of the daughter's relationship with an older teenage boy. That evidence fell squarely within the ambit of the Rape Shield Law, which generally prohibits "[e]vidence of a victim's sexual contact" in a prosecution for a sex offense under Penal Law article 130 (CPL 60.42) because such evidence "rarely elicits testimony relevant to the issues of the victim's consent on credibility, but serves only to harass the alleged victim and confuse the jurors" (People v Scott, 16 NY3d 589, 594  [internal quotation marks and citation omitted]).*fn1 The court did not abuse its discretion in disallowing this line of inquiry under CPL 60.42 (5), which vests the trial court with discretion to consider the admission of such evidence "in the interests of justice." Although defendant claims that this evidence would have demonstrated that his daughter had a desire to preserve her relationship with the young man, defendant did not attempt to elicit the general nature of the relationship between the two teenagers, instead focusing solely on alleged sexual behavior (compare People v Halbert, 80 NY2d 865, 866  [where "the trial court allowed evidence of a relationship between the minor complainant and her male friend to be presented to the jury, the court did not err in its related discretionary evidentiary ruling precluding cross-examination of the complainant with respect to the sexual aspect of that relationship"]). In any event, the trial court did permit evidence regarding the daughter's failure to return home that night; that she was found by police at the teenage boy's house the next day; that she was in his bedroom with him; and that she was quite angry at defendant for sending the police after her.
Contrary to the dissent's suggestion, the trial court complied with the two-part Rape Shield Law procedure outlined in People v Williams (81 NY2d 303 ). First, the court allowed defendant to describe without restriction his proposed line of inquiry as to whether a sexual relationship existed between the older daughter and the 16-year-old boy, and its asserted relevance to the defense -- to show that the older daughter's motive to fabricate arose from her desire to continue her relationship with the boy without her father's interference, or to protect the boy from a statutory rape charge. Second, after stating that it "understood [defendant's] argument," the court declined the admission of the proposed evidence, explaining that defendant could "certainly ask her about running away from home as a motive, et cetera," but that the "sex part" would be excluded because of its propensity to harass the 13-year-old. Although the dissent would apparently require a fuller explication, we found a similarly concise explanation sufficient in Williams, commenting that:
"The court's statement of its findings, though brief and general, was also adequate. The court might better have commented on the specific proffer and explained why the 'interest of justice' exception was inapplicable under the circumstances of the case, but its statement adequately put defendants on notice of its reasoning and created a record for appeal. Any deficiencies in the procedure did not rise to the level of reversible error" (id. at 314).
Next, the trial court did not abuse its discretion in precluding defendant from cross-examining the older daughter about certain provocative comments and suggestive photos on her MySpace account. Trial judges have "discretion to determine the scope of the cross-examination of a witness" (People v Corby, 6 NY3d 231, 234 ) and are entitled to weigh the probative value of such evidence against the possibility of confusion, unfair prejudice or cumulativeness (see People v Hayes, 17 NY3d 46, 53 ). Here, the trial court gave defendant some leeway in portraying the nature of the material on his daughter's MySpace account and the conflict that arose between them over the postings. During cross-examination, the daughter admitted that defendant was "very angry" about what he found on her account and told her to shut it down, which she refused to do. She also testified that she did not appreciate her "father yelling at [her] about [her] MySpace page." Defendant himself described the content on the MySpace account as "disgusting" in explaining why he forbade his daughter from using the computer at his house. Although the trial court could have permitted further inquiry, it was not an abuse of discretion to preclude additional cross-examination regarding the precise images or content appearing on the daughter's MySpace page. Based on the evidence presented, it was obvious that the inappropriate MySpace postings caused considerable friction between defendant and his daughter and that she resented his parental intrusion.
We also perceive no abuse of discretion in the trial court's exclusion of evidence regarding the specific clothing the older daughter favored. In determining issues of relevancy of evidence, trial courts possess latitude to admit or preclude evidence based on their analysis of its probative value against the danger that it will confuse the main issues, cause unfair prejudice to the other side or be cumulative (see People v Petty,
7 NY3d 277, 286 ). As with the MySpace evidence, the court did permit testimony regarding the controversy over the daughter's attire and defendant's negative reaction to her clothing choices. For example, defense counsel asked the daughter whether defendant "criticized the way [she] dressed" and would "criticize that [she] showed too much." She answered both questions in the affirmative. Defendant was able to demonstrate that the daughter's manner of dress was another source of strain on the parent-child relationship that contributed to the daughter's motivation to escape his control by fabricating charges of sexual abuse. That the court later discontinued further questioning of defendant regarding his "observations of the way that [she] was dressing" does not warrant reversal because the precise types of clothing that his daughter wore were unnecessary to further the motive defense.
In sum, the trial judge gave defendant sufficient latitude to develop the theory that his older daughter had substantial reasons to fabricate -- either to put an end to defendant's parental interference or to avoid being sent to an institution for troubled youths. The proof showed that defendant contacted the police to find her; constantly argued with her about her relationships with boys; objected to her staying out late at night; criticized her clothing; ordered her to discontinue her MySpace page; believed her to be disrespectful toward authority figures; and warned her "every other weekend or so" that her rebellious behavior would result in her placement in the Villa. Furthermore, the daughter acknowledged that she was upset with defendant for calling the police; did not like him telling her how to dress or whom she could associate with; was tired of his "lectures"; and believed he was serious about his threat to send her to a special program. Defendant was therefore able to present evidence ...