Summary
upholding the admission of a sixteen-year-old victim's complaint of sexual assault by her mother's boyfriend, made two to three weeks after the last incident of abuse, because the victim explained, inter alia, that she had not previously told anyone because she was embarrassed and feared that she would not be believed, would be physically abused, and would be made to leave the home
Summary of this case from Gaerian v. StateOpinion
December 26, 1991
Appeal from the Erie County Court, Rogowski, J.
Present — Denman, P.J., Doerr, Green, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from his conviction on several charges arising out of defendant's sexual abuse of the 16-year-old daughter of his girlfriend, defendant contends that the verdict is against the weight of the evidence and that the court erred in admitting evidence of the victim's statements to a counselor. The verdict is not against the weight of the evidence. The facts and circumstances relied upon by defendant do not compel the conclusion that the jury failed to give the evidence the weight it should be accorded (People v Bleakley, 69 N.Y.2d 490, 495).
The victim's statements were properly admitted under the prompt complaint rule (see generally, Baccio v People, 41 N.Y. 265; People v Ranum, 122 A.D.2d 959, 961). Defendant contends that the victim's complaint was not prompt because it occurred two to three weeks after the last incident of abuse and thus was inadmissible hearsay. The promptness of the complaint is not measured in terms of time alone, but depends also on the reasons for the delay (see, People v O'Sullivan, 104 N.Y. 481, 486-489; Higgins v People, 58 N.Y. 377, 379; People v Vincent, 34 A.D.2d 705, 706, affd 27 N.Y.2d 964; People v Bradley, 8 A.D.2d 982). Whether the complaint is sufficiently prompt depends upon whether it was made at the first "suitable opportunity" (People v O'Sullivan, supra, at 489), a determination that is based on the length of the delay, whether the victim had a prior opportunity to make the complaint, and whether threats, fear or other circumstances prevented her from making an immediate or earlier outcry (People v O'Sullivan, supra, at 489; Higgins v People, supra, at 379; People v Vincent, supra; People v Bradley, supra). Such questions are inherently factual and, except in cases of lengthy and unexcused delay, are appropriate for jury resolution (People v Vincent, supra; People v Bradley, supra; see also, People v Smyers, 167 A.D.2d 773, 775).
The complaint in this case was not unduly delayed. It was made within one day after the victim left her home, which was shared by defendant. She testified that she did not previously tell anyone because she was embarrassed, felt no one would believe her, feared being physically abused, and feared that she would be made to leave her home. Those reasons tend to support the conclusion that the complaint was made at the first suitable opportunity. In those circumstances, the victim's complaint was sufficiently prompt, and it was for the jury to determine "the weight to be given to the disclosure and the effect of the delay" (People v Bradley, supra, citing People v O'Sullivan, supra).