Tuesday, November 18, 2008

What constitutes a prompt outcry permitting the admission of hearsayis a relative concept dependent on the facts. In People v Workman (2008 NY Slip Op 08801 [4th Dept 11/18/08]) the Court held that the trial court erred in admitting in evidence the testimony of the boyfriend of the victim concerning her disclosure of the sexual abuse two years after the last incident of abuse. The court admitted the testimony as a prompt outcry, inasmuch as "evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place" (People v McDaniel, 81 NY2d 10, 16). The Court held that
the victim's disclosure in this case was not prompt. As noted, the victim made the disclosure two years after the last incident of abuse, and the record establishes that she had been living away from defendant for a period of time before making the disclosure and had not received any threats that prevented her from disclosing the abuse.

This erroneous admission was held to be harmless because his testimony mirrored evidence [that was] disclosed to the jury without objection.

On a brighter note for Mr. Workman, the Court, sua sponte, as a matter of discretion in the interest of justice, concluded that the evidence was legally insufficient to support the conviction of course of sexual conduct against a child in the first degree under Penal Law § 130.75 (1) (a). That Penal Law section requires evidence that, over at least a three-month period, defendant engaged "in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child [*2]less than eleven years old . . . ." The Court explained that there was no evidence that defendant engaged in any act other than forcible touching before the victim was 11 years old and that the conviction on that count, thus, must be reversed.