People v. Griffin

OPINION OF THE COURT

Wallach, J.

Defendant stands convicted, following a jury verdict, of the crimes of sodomy in the first degree (Penal Law § 130.50 [2]) and falsifying business records in the first degree (Penal Law § 175.10). The jury acquitted him on an additional charge of sexual abuse in the first degree (Penal Law § 130.65 [2]). Defendant was sentenced to an aggregate prison term of SVs to 10 years. We do not take issue with the position advanced by the dissent that the corpus of the evidence was sufficient to sustain this conviction. But, based on our careful review of the record, we conclude that defendant was denied a fair trial.

Defendant, a gastroenterologist, began treating the now 45-year-old female complainant for stomach complaints at St. Luke’s/Roosevelt Hospital in December 1991. Over the next three years she made regular visits to defendant’s private office for treatment of the stomach disorder, as well as depression. On the morning of January 13, 1995, the complainant appeared at the doctor’s office for a scheduled upper endoscopy and colonoscopy. The complainant testified at trial that during the latter highly invasive medical procedure, while she was helpless under heavy sedation, defendant sodomized her by placing his mouth in contact with her vagina, notwithstanding proof that this area was contaminated with fecal matter produced by the enema-like action of the colonoscope and the patient’s inability to tolerate the laxatives that might have alleviated that complication.

In addition to a denial of any wrongdoing, defendant’s defense consisted of a frontal attack on the complainant’s credibility by stressing her strong motive to concoct the charges. The complainant had been evicted from her apartment in July of 1991, and attributed her stomach and depression symptoms to the oppressive conduct of her landlord. Subsequently, she commenced a multimillion dollar lawsuit against the landlord and sought to enlist the aid of defendant as an expert witness to testify on her behalf in order to provide the vital nexus of medical causation in her tort action.

Defendant unsuccessfully sought to convince the jury that the complainant’s criminal charges were fabricated to avenge defendant’s refusal to aid her prior litigation, and were brought to enhance the prospects of her $10 million lawsuit against him for sexual assault, which was pending at the time of this trial. She realized, of course, that a criminal conviction would relieve her of the burden of establishing liability in her civil action, leaving only the issue of monetary damages.

Obviously, these charges of deviate sexual conduct by a doctor upon a helpless patient would inevitably arouse a strong emotional repugnance, and it was essential that they be considered by the jury in a dispassionate manner free of prejudicial distraction. Unfortunately, the course deliberately chosen by the Assistant District Attorney prosecuting this case made that impossible.

Prior to defendant’s taking the stand as a witness in his own behalf, the court held a Sandoval hearing outside the jury’s presence. The prosecutor sought leave to cross-examine the doctor upon an alleged romantic relationship with a female patient (“AH”) from March through July 1991. In her initial presentation, the prosecutor sought to inquire whether, on a final office visit, defendant had “masturbated in front of’ the partially disrobed AH. While the trial court, in its pretrial Sandoval ruling, had allowed a limited inquiry into the AH affair, it explicitly excluded any reference to masturbation as too inflammatory. The court further directed that if the prosecutor thought that defendant, in answering, “opened the door” beyond the limits set, she would be required to seek a ruling “outside the presence of the jury and I will address it at that time.” (Emphasis added.)

Undeterred by these meticulous instructions and apparently angered by defendant’s alleged lack of memory with respect to AH, the prosecutor inquired of him as follows:

“Q. Do you remember * * * at any point a woman in November of ’91 coming into your office at Central Park West and that you took her shirt off and fondled her breasts?

“A. Absolutely not.

“Q. And you don’t remember at any point masturbating?”

Defense counsel immediately moved for a mistrial, arguing at length that the masturbation question caused the jury to become “sullen,” and cast a continuing pall over the courtroom. The trial court agreed that “masturbation” is a “buzzword,” and the image of defendant masturbating in front of a patient in the office would be “something the jury would remember.” Nonetheless, the motion was denied with a curative instruction to the jury.

On appeal, the People are unpersuasive in minimizing the poisonous impact of the prosecutor’s intentional misconduct. Not surprisingly, they point to the curative instruction given by the court to the jury in a futile attempt to “unring the bell.” But as the Trial Judge herself acknowledged to the jurors about the masturbation question, “I know the longer I talk about it the harder it is to put it out of your mind.” Simply put, this bell had tolled, ringing a sad curfew to the notion of a fair trial.

In People v Cavallerio (71 AD2d 338), the prosecutor elicited that both defendants had been previously charged with rape, in similar defiance of a pretrial in limine ruling. There we held (at 342) that “no amount of curative instruction could sufficiently erase from the jurors’ minds the damaging statements presented,” noting the “devasting” effect of improperly placing before the jury unproven allegations of sexual misconduct. While the ruling in Cavallerio applied to the testimony of the complaining witness, the principle is all the more applicable to the current situation where a defendant takes the stand in reliance on the court’s unambiguous ruling (see, e.g., People v Martin, 172 AD2d 268; People v Gottlieb, 130 AD2d 202).

Another error occurred following the testimony of character witnesses called by defendant. At the request of the prosecutor, and over defense objection, two of these witnesses were excluded from the courtroom after completion of their testimony. No inquiry was conducted to establish the need for such exclusion (People v Jones, 47 NY2d 409, 414-415, cert denied 444 US 946), nor did the court articulate any factual findings to support such a limited closure (see, People v Tolentino, 90 NY2d 867, 869). Indeed, there was agreement among the court and counsel that the testimony of these witnesses was finished and they would not be subject to recall. This ruling improperly infringed upon defendant’s right to a public trial (People v Clemons, 78 NY2d 48, 53; People v Lopez, 185 AD2d 189, lv denied 80 NY2d 975).

A final set of errors arose from the trial court’s rulings unreasonably curtailing defense cross-examination of the complainant. Essentially, this was a one-witness case, where the credibility of the two people involved was the paramount issue for the jury to resolve. When defendant sought to cross-examine the complainant upon alleged perjury regarding her landlord-tenant case at an administrative hearing, prior merit-less lawsuits by her and her straitened financial circumstances, these topics were precluded based on “policy” considerations expressed by the court throughout the trial, namely, that sex-crime victims deserve special protection from rigorous inquiry in order to encourage other similar victims to “come forward.” While pursuit of this goal may have been well intentioned,* the result was to deprive defendant of his right of confrontation under the Sixth Amendment (People v Carter, 86 AD2d 451).

The trial court overlooked the statute in which the Legislature has fully expressed both the policy and its limitations in protecting sex-crime victims from needless embarrassment upon cross-examination. The “rape shield law” (CPL 60.42) has severely restricted impeachment of the victim by use of prior sexual history (with very carefully defined exceptions). But nothing in that law, or any other pertinent authority, provides a protective cocoon for alleged sex-crime victims against all other standard forms of impeachment, including those tending to show bias, hostility or monetary incentive to fabricate.

Finally, defendant’s conviction for falsifying a business record (an entry in the complainant’s medical chart) must also be vacated and remanded for a new trial, inasmuch as an essential element of guilt under Penal Law § 175.10 was, in this case, concealment of commission of the alleged sexual offense.

Accordingly, the judgment of the Supreme Court, New York County (Marcy Kahn, J.), rendered on or about September 6, 1996, convicting defendant of sodomy in the first degree and falsifying business records in the first degree and sentencing him to concurrent terms of 3⅓ to 10 years and l⅓ to 4 years, respectively, should be reversed, on the law, and the matter remanded for a new trial.

* Voltaire, for example, gave early recognition to this sentiment. After learning that the British admiralty had court-martialed and executed Admiral John Byng in 1757 for neglect of duty in failing to relieve the French siege of Minorca, the sage explained: “In this country [England] it is thought well to kill an admiral from time to time pour encourager les autres.” (Candide, ch 23.)