Wednesday, September 24, 2008

In a prosecution for murder in the fist degree based on a murder committed during a rape (Penal Law § 125.27 [1] [a] [vii]), as well as two counts of rape in the first degree (§ 130.35 [1]), the Court in People v Owens [4th Dep 5/2/08], held that defendant's
contention that the court erred in permitting the victim who [*2]was the subject of the two rape counts to testify that during the course of the rape defendant stated, "I did this before. Sooner or later I'm going to get caught. I might as well face my consequences." The statement was properly admitted as part of the res gestae of the rape counts (see People v Lewis, 25 AD3d 824, 826, lv denied 7 NY3d 791, 796; People v Ayala, 273 AD2d 40, lv denied 95 NY2d 863; People v Chavys, 263 AD2d 964, 965, lv denied 94 NY2d 821), and it constituted an admission with respect to those counts (see generally People v Geddes, ___ AD3d ___ [Mar. 14, 2008]; People v Figgins, 48 AD3d 1042). We note that the court properly instructed the jury to consider the testimony only with respect to the rape counts, and not the murder counts, thus limiting " the possibility of prejudice' " (People v Dozier, 32 AD3d 1346, 1347, lv dismissed 8 NY3d 880; see generally People v Dickson, 21 AD3d 646, 647).

No comments:

Post a Comment