PEOPLE v. CARDONA (2009)

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered August 8, 2006, convicting defendant, after a jury trial, of two counts of rape in the second degree, and sentencing him to consecutive terms of 2 1/313 to 7 years, unanimously affirmed.

 The court properly exercised its discretion in admitting evidence that, in an incident that occurred shortly before the charged rapes, defendant showed pornographic pictures to the 13-year-old victim.   This evidence was properly admitted to demonstrate defendant's pattern of increasingly serious sexual conduct toward the victim leading up to the charged crimes (see People v. Rosario, 34 A.D.3d 370, 824 N.Y.S.2d 296 [2006], lv. denied 8 N.Y.3d 949, 836 N.Y.S.2d 560, 868 N.E.2d 243 [2007] ).   The evidence constituted highly probative background information that tended to explain the relationship between defendant and the victim and place the events in question in a believable context (see People v. Dorm, 12 N.Y.3d 16, ----N.Y.S.2d ----, ---- N.E.2d ----).  We have considered and rejected defendant's remaining arguments relating to this evidence.

The court's Sandoval ruling, which permitted the People to elicit defendant's prior sexual abuse conviction without mentioning any underlying facts, balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002];  People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216 [1983];  People v. Rosado, 53 A.D.3d 455, 862 N.Y.S.2d 41 [2008], lv. denied 11 N.Y.3d 835, 868 N.Y.S.2d 609, 897 N.E.2d 1093 [2008] ).

 The court properly permitted the People to rebut a claim of recent fabrication by introducing a prior consistent statement made by the victim, since this statement predated a particular motive to falsify that had been asserted by the defense (see People v. McDaniel, 81 N.Y.2d 10, 18, 595 N.Y.S.2d 364, 611 N.E.2d 265 [1993];  People v. Whitley, 14 A.D.3d 403, 406, 788 N.Y.S.2d 94 [2005], lv. denied 4 N.Y.3d 892, 798 N.Y.S.2d 737, 831 N.E.2d 982 [2005] ).

We perceive no basis for reducing the sentence.