Opinion
November 22, 1994
Appeal from the Supreme Court, Bronx County (Arlene Silverman, J.).
Over the course of several months, the infant victim was sexually assaulted by her grandmother's husband, with whom she lived. The child's testimony established that the assaults occurred during the winter of 1987, and the spring of 1988. The victim's estranged parents noticed changes in her behavior toward the end of 1987. Psychological evidence established that this behavior was consistent with the child sexual abuse syndrome. Medical evidence established that the victim's hymen had been torn by an object larger than a child's finger. During June of 1988, while watching a television show which addressed incest, the child complained to her mother that the defendant had done to her that which was occurring on the show. This testimony was adduced through the mother on the basis of the prompt outcry exception to the hearsay doctrine. Considering the age of the child, the fear which defendant had instilled in her if she informed on him, her shame, and, especially, her vulnerability, which was underscored when her grandmother testified on defendant's behalf, we find no basis to doubt the essential reliability of the outcry. While the timing of the outcry was insufficiently prompt for this evidence to have been admitted on this theory (People v. McDaniel, 81 N.Y.2d 10), we find that the error was harmless (People v. Rice, 75 N.Y.2d 929, 932). Defendant failed to preserve any constitutional challenges to this evidence (People v. Iannelli, 69 N.Y.2d 684, cert denied 482 U.S. 914), and we decline to review those claims in the interest of justice.
We find no basis to disturb the trial court's conclusion that one of the jurors, a methadone user, had been capable of deliberating before and after being transported to the hospital for purposes of receiving methadone (compare, People v. Matos, 183 A.D.2d 506, lv denied 80 N.Y.2d 896, with People v. Waterman, 174 A.D.2d 428, lv denied 78 N.Y.2d 976). After the court's careful inquiry, it could rely on the juror's promise that he would alert the court if he developed any problem during deliberations (see, People v. Keels, 166 A.D.2d 883, lv denied 76 N.Y.2d 1022; People v. Bell, 173 A.D.2d 218, lv denied 78 N.Y.2d 962). Inasmuch as counsel never alleged, during his mistrial motion, that the juror had gone to and from the hospital unsupervised by court officers or other appropriate court personnel (People v. Fernandez, 81 N.Y.2d 1023), we find no basis to conclude that there was any violation of CPL 310.10.
Concur — Sullivan, J.P., Rosenberger, Ellerin, Kupferman and Williams, JJ.