PEOPLE v. DURRANT

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Anthony J. DURRANT, Appellant.

2017–12399

Decided: June 12, 2019

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ. Galluzzo & Arnone LLP, New York, N.Y. (Matthew J. Galluzzo of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Sharon Y. Brodt of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Charles S. Lopresto, J.), rendered November 8, 2017, convicting him of sexual abuse in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted of the sexual abuse of an eight-year-old child who was related to his girlfriend.  The People's primary witness was the child, who was 10 years old at the time of the trial and gave sworn testimony.

Prior to the trial, the People moved for permission to introduce evidence at the trial of three alleged incidents of sexually inappropriate conduct by the defendant involving the same child.  We agree with the Supreme Court's determination to grant the motion, since that evidence provided necessary background information about the nature of the relationship between the defendant and the child, and explained the child's conduct (see People v. Leeson, 12 N.Y.3d 823, 826–827, 880 N.Y.S.2d 895, 908 N.E.2d 885;  People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263;  People v. Britton, 140 A.D.3d 975, 976, 35 N.Y.S.3d 140;  People v. Kamp, 129 A.D.3d 1339, 1340, 14 N.Y.S.3d 163;  People v. Washington, 122 A.D.3d 1406, 1408, 997 N.Y.S.2d 194;  People v. Gopaul, 112 A.D.3d 964, 965, 977 N.Y.S.2d 366;  People v. Khan, 88 A.D.3d 1014, 931 N.Y.S.2d 393).  Moreover, the probative value of the evidence outweighed the prejudice to the defendant.  Further, the prejudice to the defendant was minimized by the court's limiting instructions (see People v. Frumusa, 29 N.Y.3d 364, 373, 57 N.Y.S.3d 103, 79 N.E.3d 495;  People v. Cass, 18 N.Y.3d 553, 560, 942 N.Y.S.2d 416, 965 N.E.2d 918).

Moreover, the Supreme Court's Sandoval ruling was a provident exercise of discretion (see People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216;  People v. Coleman, 56 N.Y.2d 269, 273, 451 N.Y.S.2d 705, 436 N.E.2d 1307;  People v. Sandoval, 34 N.Y.2d 371, 377, 357 N.Y.S.2d 849, 314 N.E.2d 413).

The defendant called as a character witness a coworker from his prior employment, who testified that he was not aware that defendant had a bad reputation for sexually abusive or sexually inappropriate conduct in their “working community.”  When defense counsel asked the witness if he was aware of anyone ever saying “anything bad with respect to [the defendant] being sexually inappropriate or sexually abusive toward other people in the workplace,” the People objected.  The objection was sustained.  After adducing the fact that the witness was never convicted of a crime, defense counsel stated that he had “[n]o further questions.”  The People did not cross-examine, and, instead, moved to strike the witness's testimony.  The People's motion was granted on the ground that the witness was not aware of the defendant's reputation, and testimony that a witness never heard anyone say anything negative is not sufficient character evidence.

Contrary to the conclusion of the Supreme Court, negative evidence of reputation—i.e., that the witness never heard anyone say anything negative about the defendant—can constitute relevant character evidence (see People v. Bouton, 50 N.Y.2d 130, 139, 428 N.Y.S.2d 218, 405 N.E.2d 699;  People v. Van Gaasbeck, 189 N.Y. 408, 82 N.E. 718;  People v. Thompson, 75 A.D.2d 830, 427 N.Y.S.2d 464;  People v. Malinowski, 43 A.D.2d 189, 191, 350 N.Y.S.2d 454).  However, relevant character evidence must be of reputation generally in the community where the crime occurred (see People v. Bouton, 50 N.Y.2d at 139, 428 N.Y.S.2d 218, 405 N.E.2d 699).  Although that community is more broadly defined in modern times (see People v. Fernandez, 17 N.Y.3d 70, 78, 926 N.Y.S.2d 390, 950 N.E.2d 126), the defendant's reputation in the workplace for lack of sexual impropriety was in no way relevant to whether he sexually abused a child in secret and outside of the workplace.  Accordingly, the character evidence was properly stricken, since that evidence was irrelevant.

The defendant's remaining contention is without merit.

RIVERA, J.P., ROMAN, HINDS–RADIX and DUFFY, JJ., concur.

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