PEOPLE v. COOK (1999)

OPINION OF THE COURT

The order of the Appellate Division should be affirmed.

Defendant contends that the court erred in admitting evidence concerning his prior uncharged acts of violence toward his paramour, the complainant.   He had been indicted for forcible rape, sexual abuse, menacing, felonious assault, and criminal contempt, alleged to have been committed on three days over an 11-week period.   He was acquitted of the forcible rape and convicted of the other crimes.

 Evidence of prior uncharged crimes may be admitted to establish some element of the crime under consideration (see, People v. Alvino, 71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 519 N.E.2d 808;  see also, People v. Lewis, 69 N.Y.2d 321, 326-327, 514 N.Y.S.2d 205, 506 N.E.2d 915;  Prince, Richardson on Evidence § 4-515, at 191-192 [Farrell 11th ed.] ).  The evidence will be allowed if its probative value exceeds the potential for prejudice to the defendant (see, People v. Ely, 68 N.Y.2d 520, 529, 510 N.Y.S.2d 532, 503 N.E.2d 88), a determination turning on the “discretionary balancing of the probative value and the need for the evidence against the potential for delay, surprise and prejudice” (People v. Alvino, supra, at 242, 525 N.Y.S.2d 7, 519 N.E.2d 808;  People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59).   Accordingly, and when appropriate-as here, in light of the relationship between defendant and complainant-evidence of a defendant's prior abusive behavior toward a complainant may be admissible to prove the element of forcible compulsion in a rape case (see, e.g., People v. McClain, 250 A.D.2d 871, 672 N.Y.S.2d 503;  People v. George, 197 A.D.2d 588, 589, 602 N.Y.S.2d 643, lv. denied 82 N.Y.2d 925, 610 N.Y.S.2d 177, 632 N.E.2d 487, 83 N.Y.2d 852, 612 N.Y.S.2d 384, 634 N.E.2d 985).   This is true even though, as in this case, the defense is not consensual sex, but that the rape never occurred and that the complainant's allegation was a lie.

 Order affirmed in a memorandum.

MEMORANDUM.

Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.