Matter of Khamari P.

[*1] Matter of Khamari P. 2017 NY Slip Op 50476(U) Decided on March 24, 2017 Family Court, Kings County Pitchal, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2017
Family Court, Kings County

In the Matter of Khamari P., A Person Alleged to be a Juvenile Delinquent, Respondent.



E-xxx/16



Katrina G. Vetrano, Esq.

Assistant Corporation Counsel

330 Jay St., 12th Floor

Brooklyn, NY 11201

Melissa Bonaldes, Esq.

26 Court St., Ste 1917

Brooklyn, NY 11242

Attorney for the Child
Erik S. Pitchal, J.

Now pending before the Court [FN1] is motion # 1, an application by the presentment agency for an order precluding respondent from cross-examining the complainant and her mother concerning prior allegations of sexual abuse allegedly made by the complainant when she was five years old, and related relief. The moving papers, styled as an order to show cause, were [*2]filed March 10, 2017; the Court has also considered the opposition papers filed by the attorney for the child, dated March 23, 2017. As no oral argument was requested, the following decision is rendered on the basis of the papers alone. See 22 N.Y.C.R.R. § 205.11(d). Based on the record, and for the reasons that follow, the motion is granted in its entirety.

The respondent is charged with committing acts which, if done by an adult, would constitute various sex crimes, in that he allegedly had forcible sexual contact of multiple types on multiple occasions with his cousin C. W. starting when she was "5, 6, or 7" years old, up to and including when she was 10. During pre-trial colloquy with the Court, the attorney for the child indicated that she had learned that when C.W. was five, she made an allegation that her then-step-father, L.F., sexually abused her by kissing her, and evidently respondent has some basis to believe that this allegation against Mr. F. was false.[FN2] The attorney for the child did not move for leave to present evidence about this purported prior false allegation, but instead, the presentment agency pre-emptively moved to preclude it.

As an initial matter, the Court finds that the Rape Shield Law, Family Court Act § 344.4, is not directly applicable in this situation. The proffered evidence is not designed to show that the complainant, who is still 11 years old and not able to consent to sexual activity, engaged in prior sexual conduct that has bearing on her testimony. Rather, respondent's theory is that the complainant has a history of making up false stories about being the victim of sexual misconduct, and that this history is relevant to her credibility in the current case. Such evidence is generally admissible to impeach a complainant's credibility. People v. Diaz, 85 AD3d 1047, 1050 (2d Dep't. 2011).

However, the trial court has broad discretion to limit the scope of the proceedings so as to avoid extensive exploration of collateral matters. Id. at 1049-50. In particular, proffered impeachment evidence will be precluded unless the proffer demonstrates that 1) the prior allegation may have been false and 2) the particulars of the prior allegation, the circumstances or manner of the prior alleged misconduct, or the currency of the complaints were such as to suggest a pattern casting substantial doubt on the validity of the current accusation made by the same complainant. People v. Mandel, 48 NY2d 952, 953 (1979); Diaz, 85 AD3d at 1050; People v. Cerda, 78 AD3d 539 (1st Dep't. 2010).

Here, even assuming that attorney for the child has a good faith basis to believe that she can present impeachment evidence to show that C.W.'s allegation against Mr. F. was false, the proffer is insufficient to meet the second prong of the Mandel test. The allegation against Mr. F. is "far removed in time and quite different" from the current charges against the respondent. People v. McCray, 23 NY3d 193, 200 (2014). The current petition involves allegations made by an 11-year-old against her cousin. C.W.'s supporting affidavit details many incident of forcible penile-anal penetration, among other acts which could support a finding of serious sex crimes. [*3]While she alleges that the respondent's actions began when she was "5, 6, or 7," she contends that they continued up until she was 10, and she made the charges when she was 11.

These accusations are completely different in nature, character, and timing than an allegation that when she was five that her step-father, a grown man, kissed her. Nothing in the proffer suggests that C.W. has maintained the accusation against Mr. F.; to the contrary, there is some reason to believe that respondent's proposed impeachment evidence includes testimony that C.W. recanted the allegation against Mr. F. soon after first making it. At the time, the child was five; now, she is 11. In sum, even if C.W. did, six years ago, make a false charge that her step-father kissed her, the Court finds that this would not affect its credibility determination regarding her testimony on the pending petition. People v. Hunter, 11 NY3d 1 (2008), does not compel a different result.

THEREFORE IT IS HEREBY ORDERED THAT: The motion to preclude is granted. Respondent is barred from questioning either the complaining witness or her mother any questions on cross-examination relating to allegations that L.F. kissed her when she was five-years-old.

Dated: March 24, 2017

Hon. Erik S. Pitchal Footnotes

Footnote 1:This case is currently assigned to Hon. Alan Beckoff. However, pursuant to the Kings County Family Court CP/JD Reorganization Plan, pre-trial motions relating to the admissibility of evidence are referred to a trial part for pre-trial determination. The instant motion was referred to the undersigned for decision.

Footnote 2:The response papers filed by the attorney for the child are somewhat vague as to what, exactly, the proffer is. Once a motion is filed regarding the preclusion of evidence, it is incumbent on the non-moving party to specify with particularity what the offer of proof is. Cf. People v. Williams, 81 NY2d 303, 314-15 (1993). Nevertheless, the Court will give respondent the benefit of the doubt and assume that the proffer includes impeachment testimony by Mr. F. that C.W. did make an allegation of sex abuse against him when she was five, and that the allegation was false.