The defendant is charged by Indictment #173-2010 with Criminal Sexual Assault Act 2d (130.45(1);

Forcible Touching (PL Section 130.52) and Endangering the Welfare of a Child, PL 260.10(1) for an allegation of sexual contact with Emily Doe, a fourteen (14) year old female person for an incident occurring at the defendant's home in the late evening hours of June 15, 2010 The defendant is the quasi or de facto brother-in-law of the victim.^[FN1]

Prior to Jury Selection, the People made a pre-trial Motion in Limine to preclude the defendant from cross-examining the victim at trial or making reference during trial to any claim that the victim made a prior allegation of sexual abuse against another individual unrelated to the present case. The People seek preclusion pursuant to CPL 60.42, New York State Rape Shield Law and relevant case law.

Pursuant to CPL 60.42, New York State Rape Shield law evidence of a victim's sexual conduct is not admissible in a prosecution for an offense or an attempt to commit an offense defined in article one-hundred thirty of the Penal Law unless such evidence;

(1) proves or tends to prove specific instances of the victim's prior sexual conduct with the accused; or [*2]

(2) proves or tends to prove that the victim has been convicted of an offense under 230.00 of the Penal Law within three years prior to the sex offense which is the subject of the prosecution; or

(3) rebuts evidence introduced by the People of the victim's failure to engage in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact during a given period of time; or

(4) rebuts evidence introduced by the People which proves or tends to prove that the accused is the cause of pregnancy or disease of the victim or the source of semen found in the victim; or

(5) is determined by the Court after an offer of proof by the accused outside the hearing of jury, or such hearing as the Court may require, and a statement by the Court of its findings of fact essential to its determination, to be relevant and admissible in the interests of Justice, CPL 60.42.

The Defense in this case made an offer of proof that the victim also made an allegation for touching her inappropriately when she was residing temporarily in New York and Vermont, against an individual in Vermont named Martin when she was interviewed on June 16, 2010 by the New York State Police. The Vermont State Police were immediately, on June 16, 2010, referred the Martin case by the New York State Police^[FN2]. The Vermont State Police conducted an investigation regarding Martin which had nothing to do with the victim's relationship to the defendant, KENNETH FOULKES, nor the pending charges against KENNETH FOULKES as contained in Indictment #173-2010.

The People argue that a prior allegation of sexual contact made by the victim against a different defendant is barred unless defense counsel can prove that those allegations were in fact false, and thus inadmissible at the defendant's trial, and that the victim cannot be cross-examined on those allegations nor can defense counsel speculate regarding the prior allegation. It is not contested that the Martin allegations has nothing to do with KENNETH FOULKES and that the facts surrounding the prior allegation against Martin is entirely unrelated to this case except that the same sexual abuse is alleged against an adult male, who like the defendant herein is the victim's brother-in-law.

The plaintiff argues that "Evidence regarding the sexual activity between complainant, age ten, and individuals other than defendant was irrelevant to issue whether defendant had sexual intercourse with complainant and was not otherwise admissible. People v Mathews, 227 AD2d 954 (1996). The People also argue that "Proof of victim's prior sexual activity is inadmissible, since, a victim's sexual activity did not tend to show that defendant's fondling of victim's breast and vagina was not likely to be harmful to her physical, mental, or moral welfare." People v. Alteri 49 AD3d 918 (2008). However, in the case at bar, the Martin allegation is being solely offered for credibility impeachment purposes of the victim and not that the victim has a propensity for sex activities. "Preclusion of questions about a victim's prior complaint of a sex crime does not constitute an abuse of discretion where, . . . defendant made no showing that the prior allegation was false." People v. Smith, 281 AD2d 957 (2001). However, in the case at bar, defendant argues that the prior allegation is de facto false since no criminal charges were filed by [*3]the Vermont State Police against Martin in the past seven (7) months and no Civil or other action. (See, also, People v. Hamel, 174 AD2d 837, 571 N.Y.S.2d 138.) In People v. Mandel, (48 NY2d 952, cert denied, appeal dismissed 446 US 949), the Court of Appeals held that evidence of a victim's prior complaint of a sex crime (emphasis added)does not come within the proscriptive scope of CPL 60.42; therefore, its "admissibility rests within the discretion of the trial Court" (People v. Harris, 132 AD2d 940, 941, Iv denied 74 NY2d 810). Inasmuch as defendant sought to impeach the complainant's credibility through the use of multiple hearsay (see, People v. Hicks, 154 AD2d 713, 714), without an adequate factual basis for believing that the prior complaint was false (see, People v. Lippert, 138 AD2d 770, 771)), the Court saw no abuse of Trial Court's discretion in denying defendant's motion to permit cross-examination of the complainant about a prior incident of attempted rape.

In the case at Bar the defendant argues that there is an adequate factual basis that the Martin allegation is false since no arrest or other action against Martin either criminally or in a Civil forum was taken by the Vermont State Police.

In People v. Harris, 151 AD2d 981, 542 N.Y.S.2d 71 (4th Dept. 1989),the Fourth Dept. found that CPL Section 60.42 does not bar evidence of a claim of prior sexual abuse by a complainant; it bars evidence of prior sexual conduct of a complainant. Evidence of a prior false claim of sexual abuse is governed by the discretion of the trial Court and is not inadmissible as a matter of law. People v. Hunter, 11 NY3d 1, 862 N.Y.S.2d 301 (2008). Moreover, it may be received if it is false and of sufficient similarity to the charged crime to suggest a pattern of false complaints. People v. Lackey, 48 AD3d 982, 853 N.Y.S. 2d 668 (3rd Dept. 2008).

In this case, the People do not dispute that the complainant herein made is a similar allegation to the case at bar, and that, the perpetrator as previously alleged by the complainant was her brother-in-law, the husband of her other sister.^[FN3] The alleged perpetrator in this case is her "de facto" brother-in-law, the father of another sister's child.Also, the Martin allegation was investigated by the Vermont State Police who have made no arrest to date.

Following the guidance in Mandel, (Supra) and Harris (Supra) this Court finds that the proffered evidence is proof of a prior and similar abuse complaint made by the victim. This Court finds that there was sufficient proof offered for a good faith factual basis that the prior complaint was false, and that a showing was made that the particulars of the complaint and the circumstances or manner of the alleged abuse presents a same class of perpetrator, that is, brother-in-laws, and that this presents a suggested a pattern casting doubt on the validity of the charges made by the victim in this instance, and that there is a significant probative relation to such charges, that is, the only direct evidence of guilt, the victim's credibility.

In the instant case, there was no evidence of an admission by defendant; no physical evidence^[FN4]; no direct evidence of the defendant's guilt other than the victim's testimony and that the victim's credibility is crucial and central to the People's proof and the victim's credibility is [*4]the defendant's only defense to the charge. Thus, under these circumstances the defendant's Due Process right to a fair trial allows the prior false complaint to be used for cross-examination impeachment purposes only.

The above constitutes the Decision and Order of this Court.

Dated: January 28, 2011

Monticello, New York

E N T E R :

_______________________

HON. FRANK J. LaBUDA,

J.C.C.