AD4 order dated February 18, 2011, affirming judgment of conviction. Decision below: 81 AD3d 1446, 916 NYS2d 878. Pigott, J., granted leave June 24, 2011.

ISSUE PRESENTED: Application of the Rape Shield Law (CPL 60.42) to the victim’s alleged prior sexual conduct.(Assigned counsel: Timothy P. Donaher, Monroe County Public Defender, 10 N. Fitzhugh St., Rochester, NY 14614.)

Issue before the Court: In a case where the defendant was charged with sexually abusing and raping his step-daughter, did the trial court abuse its discretion in precluding cross-examination of the complainant about the sexual nature of her relationship with an older boy to establish a motivation to fabricate charges against her disapproving step-father?

Held:  The evidence was properly precluded under the Rape Shield Law, and Supreme Court complied with the correct Rape Shield Law procedures. 

CAL observes:  In dissent, Judge Smith takes the unusual step of urging the Monroe County D.A. to re-investigate, expressing his deep reservations about the defendant's guilt.  His observations underscore the particularly troubling nature of intra-family sexual abuse cases.