People v. Fernandez

Malone Jr., J.

Appeal from a judgment of the County Court of Ulster County (Teresi, J.), rendered June 1, 2009, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree, sexual abuse in the second degree and endangering the welfare of a child.

Between August 2005 and December 2005, defendant (born in 1987) allegedly engaged in sexual conduct with the complainant (born in 1997), a member of his family, on at least three occasions. The complainant did not reveal this until 2008, at which time defendant was charged with course of sexual conduct against a child in the first and second degrees, rape in the first degree, sexual abuse in the first and second degrees and endangering the welfare of a child. Following a jury trial, defendant was convicted of sexual abuse in the first degree, sexual abuse in the second degree and endangering the welfare of a child. Defendant unsuccessfully moved to set aside the verdict and was then sentenced to an aggregate jail term of four months to be followed by 10 years of probation.1 Defendant appeals.

Initially, we agree with defendant that count 5 of the indictment, charging him with sexual abuse in the second degree (see Penal Law § 130.60 [2]), is an inclusory concurrent count of the one charging him with sexual abuse in the first degree (see Penal Law § 130.65 [3]; see also CPL 1.20 [37]; 300.40 [3] [b]). Accordingly, defendant’s conviction of sexual abuse in the second degree must be reversed and that count dismissed (see People v Harp, 20 AD3d 672, 674 [2005], lv denied 5 NY3d 852 [2005]).

Next, while we find that the evidence presented was legally sufficient to support the remaining convictions, we agree with defendant that County Court improperly precluded him from presenting testimony of two family members regarding the complainant’s reputation in their family for untruthfulness. Defendant has the absolute “right to present to the jury a witness with personal knowledge of complainant!’s] bad reputation for truthfulness and veracity in the community” (People v Hanley, 5 NY3d 108, 113 [2005]; see People v Pavao, 59 NY2d 282, 290 [1983]; People v Bouton, 50 NY2d 130, 138-140 [1980]). Here, the court precluded reputation testimony by Juan Collazo on the basis that defense counsel had failed to lay a proper foundation for such. However, our review of the record reveals that defense counsel questioned Collazo about his relation to both *1381defendant and the complainant, how long he had known the complainant, how large their extended family was and how often they all gathered together. Collazo also testified that, when the extended family gathered, the complainant’s reputation was discussed. In our view, this testimony provided an adequate foundation for the reputation testimony. In addition, the court improperly precluded reputation testimony by Ramona Fernandez on the basis that the family was not a community for purposes of reputation testimony.2 However, the record here supports a finding that, within the extended family at issue, the members had the requisite “quantity and quality” of contact with the young complainant as to be considered her community (People v Bouton, 50 NY2d at 139). “[T]he evidence . . . demonstrate [d] a reputation rather than merely ‘individual and independent dealings’ ” (id. at 139-140, quoting People v Colantone, 243 NY 134, 139 [1926]). Any purported bias of the family members could have been explored and developed by the prosecutor, and the court’s refusal to permit the testimony denied the jury the opportunity to perform its function in fully assessing the credibility of the complainant. This was particularly damaging to defendant considering that the only evidence presented to establish that the abuse actually occurred was the complainant’s testimony and, therefore, her “credibility was the central issue” (People v Streitferdt, 169 AD2d 171, 175 [1991], lv denied 78 NY2d 1015 [1991]). Under these circumstances, the error in precluding reputation testimony cannot be considered harmless.

In light of the foregoing, we need not address defendant’s remaining contentions.

Kavanagh and Garry, JJ., concur.

. This Court granted defendant’s application to stay the execution of the sentence pending this appeal.

. We note that the “community” about which Fernandez would have testified included more than family members, considering that she stated that family friends were also familiar with the complainant.