Issue before the Court: Whether the trial court erred in applying New York’s Rape Shield Law
(CPL 60.42) to exclude forensic evidence proffered by the defendant to demonstrate that
someone else caused the complainant’s injuries?

Held: Yes, under the specific facts of this case. The evidence was admissible under CPL 60.42
[5], which permits evidence of a victim’s sexual conduct to be admitted if the trial court
determines that it is “relevant and admissible in the interests of justice.” The evidence met that
standard here, because it specifically countered the prosecution’s claim that the defendant had
digitally penetrated the young complainant by proffering an alternative, innocent explanation for
the petechiae (burst blood vessels) on the complainant’s hymen, namely that the complainant had
caused the injuries herself by vigorous rubbing the area, whether due to irritation or
masturbation. The forensic evidence, which confirmed the presence of the complainant’s saliva
in the vicinity of her internal injuries, supported this defense theory. The defendant was not
seeking to use the forensic evidence in violation of the statute, that is, to impugn the
complainant’s character by presenting her as a promiscuous female who could not be believed,
but in legitimate furtherance of his defense. Accordingly, the exclusion of the forensic evidence
deprived the defendant of a meaningful opportunity to present a complete defense, and was an
abuse of discretion as a matter of law.

In a dissent written by Judge Cannataro and joined by Garcia (Singas took no part), the
dissenters took issue with the relevance of the material the defense sought to admit –
characterizing it as confusing and speculative – and sharply criticized the majority’s conclusion
that the trial court’s defensible exercise of discretion amounted to an abuse of discretion as a
matter of law. The dissent reserved its harshest words, however, for the lawyers themselves,
contending that the “litigation strategy, continued in the briefing to this Court” was to impugn
the complainant’s character by promoting the theory that she “was a sexually experienced young
girl.”

CAL Observes: The 5-judge majority decision (penned by Lynch, J., the Appellate Division,
Third Department judge swapped in for Singas) ties the result to the very specific circumstances
here: the proffered evidence “directly responded to the prosecutor’s theory that defendant alone
caused the complainant’s injuries.” Make no mistake, by no means was the majority promoting a
wide-ranging “interests of justice” exception that would permit the defense to introduce evidence
of the complainant’s sexual conduct to support a theory of third-party guilt. But even given the
highly case-specific context, that five judges were able to move past the discomforting optics of
the case to properly apply the exception and protect the defendant’s right to present his defense,
is refreshing.

Underlying the case is the usual battle over standards and semantics. When does an error cross
the line from garden-variety “abuse of discretion” (virtually untouchable in the Court of
Appeals) to “abuse of discretion as a matter of law” ( a reviewable error of law)? The competing
positions don’t provide much useful guidance, except to underscore that, end of day, the task of
the Court of Appeals litigator is to convince at least four members that the lower court’s decision
was so unreasonable as to constitute the latter.