People v Thompson

[*1] People v Thompson 2006 NY Slip Op 50454(U) [11 Misc 3d 1070(A)] Decided on March 27, 2006 County Court, Ulster County LaBuda, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 27, 2006
County Court, Ulster County

The People of the State of New York

against

Wade Thompson, Defendant.



175-05



APPEARANCES: Hon. Donald Williams

Ulster County District Attorney

275 Wall Street

Kingston, NY 12401

By: Julian D. Schreibman, ADA, of counsel

Attorney for the People

Benjamin Ostrer, Esq.

P.O. Box 509

Walden, NY 10918

Attorney for the Defendant

Frank J. LaBuda, J.

This matter comes on by defendant's application to re-open proof after both the People and the defendant rested, the defendant and the People completed summations and the Court was about to charge the jury.

The defendant was charged under Ulster County Indictment #175-05 with sexual abuse in the first degree PL 130.65(1), assault in the second degree (PL 120.05(2) and forcible touching (PL 130.52).

This matter had some notoriety as the defendant is an eighty-four (84) year old college professor and the alleged victim was one of his students. [*2]

Defendant is charged with having forcible sexual contact with the alleged victim and assaulting her by hitting her with a belt and buckle during sadomasochistic or rough sex.

Defendant claims that any sexual contact and rough sex was consentual.

The alleged victim testified during grand jury. A transcript of said grand jury testimony was supplied to the defense as Rosario material after jury selection.

Part of the alleged victim's grand jury testimony involved a description of her alleged attacker in a prior sexual assault that may have occurred in Orange County on November 8, 2002 but was never solved. However, in her testimony at trial the description of the alleged 2002 attacker differed from the grand jury description.

The defense began an investigation which included interviews with members of two different police departments in Orange County, interviews with tipsters to the defense law office (after reading about the case in the newspapers) and tap recorded conversations.

Defense now moves to re-open the defense case, or in the alternative, for a mistrial after all parties rested and summations to the jury were complete but just prior to the Court's jury charge.[FN1]

The People argue against re-opening and take no position on the motion for a mistrial.

For reason that follow, the motion to re-open is denied and the motion for a mistrial is granted.

The defense argues that People v Whipple, 97 NY2d 1 (2001) is dispositive herein.

Whipple is a case which originated in the Sullivan County Court before your within Judge. The Court of appeals affirmed the re-opening of the People's case to prove an element of the crime charged after motion by the defense for a trial order of dismissal.

Although the People elicited testimony in Whipple that the parking lot in question was used by several businesses there was no specific testimony the parking lot contained four or more spaces as required under the statute.

The Court of Appeals, in upholding the court's decision in Whipple for the People to re-open for the specific purpose of clarifying the amount of parking spaces in the public lot , found that a motion to re-open should be granted where, "... the missing element is simple to prove and not seriously contested." [*3]

A trial court has the discretion to allow proof in a sequence where justice is served and "In the interest of justice, the court may permit either party to offer evidence upon rebuttal which is not technically of a rebuttal nature but more properly a part of the offering party's original case." CPL 260.30(7).

"Leave to reopen remains, of course, a precarious dispensation upon which counsel rely at their peril. Courts, which have abundant discretion to deny such leave even to defendants." People v Whipple, supra. (citations omitted).

Reopening should not disrupt the trial process or unduly prejudice on of the parties. People v Whipple, supra; People v Olsen, 34 NY2d 349.

In the case at bar, the testimony of the alleged victim concerning the prior sexual assault in 2002 was not new evidence to the defense. The victim's grand jury testimony involved the prior incident. The fact of whether her testimony of the description of the alleged attacker varied between the grand jury testimony and her trial testimony does not make the alleged prior assault new evidence to the defense. As such, defense investigation should have elicited facts which they could have used in their defense prior to resting and all parties completing summations.

The evidence that the defense wishes to introduce, if allowed to re-open, is vastly different than in Whipple.

Here, the defense would need to call a number of police witness from different departments, possibly documents, citizen tipsters and tap recordings, including laying the various foundations and authentications.

This not, in the words of Whipple, "simple to prove and not seriously contested."

Based upon the above, it is

ORDERED, that defendant's application to re-open is denied, and it is further

ORDERED, that defendant's application to for a mistrial is granted.

This shall constitute the Decision and Order of this Court.

DATED: March 27, 2006

Monticello, NY

_______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate [*4] Footnotes

Footnote 1:The defense argues that the evidence to be submitted after re-opening stresses the credibility and state of mind of the alleged victim.