[969 N.Y.S.2d 427] Timothy P. Donaher, Monroe County Public Defender, Rochester (Janet C. Somes of counsel), for appellant.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent.
[991 N.E.2d 201] We hold that the trial court erred in prohibiting defendant from making a " missing witness" argument, but that the error was harmless.
Defendant was charged with criminal sexual act in the first degree, criminal contempt and two counts of assault. The complainant was a woman with whom defendant had had a turbulent relationship for several years, and with whom he had three children. In the course of the relationship, the complainant had three times called either 911 or the police to complain that defendant was abusing her physically; the most recent of these incidents, in July 2005, had led to a " no contact" order of protection. At the complainant's request, the order was later replaced by one prohibiting only " offensive contact." The latter order was in force when the events involved in this case took place in November 2006.
According to the complainant's testimony, on November 27, she and defendant [991 N.E.2d 202] [969 N.Y.S.2d 428] had an argument in which he pulled her hair and punched her face, leading her to threaten him with a knife and drive him out of the house where they had been living together. She went with her children to her father's for two days, and returned with them to her home on November 29. Defendant arrived at the house shortly after her return. She asked him to leave and, when he refused, she started preparing to leave herself.
This began, according to the complainant, a series of violent acts that extended over 14 hours. She said that defendant dragged her into a spare room, climbed on top of her and punched her in the face and head. He then ordered her into the bedroom where their baby was sleeping, picked up a box cutter (which she had kept there to protect herself from him), and, by threatening her with this weapon, forced her to submit to anal intercourse, in the course of which he bit her in the back. He then ordered her to tend to the baby while he followed her around, holding the box cutter all the while.
The complainant's account continued: Defendant masturbated on her and then chained her to him by the ankle, using a bicycle chain or dog chain and padlock. The couple lay down, chained together, for a few hours. In the morning, defendant unchained her. After she put one of her children on the bus to school, defendant ordered her upstairs and beat her with the chain. Defendant finally left, after ripping a telephone off the wall, and the complainant ran to a neighbor's house and called 911.
The complainant's testimony was corroborated in part by photographs taken within hours of the incident, which show bruises on her face and back, and by testimony from a doctor who saw her that day and observed bruises and swelling around her eyes, bruises on her back and left ankle, and rectal bleeding that was, in the doctor's opinion, consistent with anal penetration. The doctor also observed a bite mark on the complainant's back; saliva found in the bite mark contained defendant's DNA.
At trial, defendant's counsel focused on what he suggested were weaknesses in the People's case. The box cutter and the chain had not been found; the complainant testified that defendant took them when he left. More important to this appeal, defense counsel emphasized a statement the complainant had given to a police officer who responded to her 911 call. The officer wrote the statement on the basis of his interview with the complainant, and the ...