
    The People of the State of New York, Respondent, v Stephen Rice, Appellant.
    Argued February 9, 1990;
    decided April 3, 1990
    
      APPEARANCES OF COUNSEL
    
      Kerry Elgarten and Philip L. Weinstein for appellant.
    
      Robert T. Johnson, District Attorney (Lisa M. Loscalzo and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

According to the complainant, on a bright, sunny afternoon in August 1986, she left her Manhattan apartment to visit her grandson and, after waiting a short time for a bus, decided to walk. She was proceeding down a ramp when she was approached from behind by defendant, who placed his hands on her shoulders and turned her around to face him; his trousers were open and he told her, "I’m going to have sex with you.” After threatening to beat her, defendant led the complainant down an embankment and raped her, repeatedly reminding her not to look at him. Defendant then returned to the top of the embankment, where he waited for the complainant and spoke with her. He fled after picking up his blue-green knapsack, from which he removed a tattered manila envelope. During the incident, which took 20-25 minutes, the complainant kept her eyes focused on defendant.

When she later encountered a patrol car, the complainant reported that she had been raped and fully described her assailant, including the knapsack, to the police. Two weeks later, she immediately picked the defendant out of a lineup; he was at that time in possession of both the blue-green knapsack and the manila envelope, which the complainant identified. She also identified the defendant at trial; at trial, additionally, three police officers related the description the complainant had given them, adding nothing to her account.

The major contention advanced by defendant on this appeal is that it was reversible error to admit the testimony of the complainant and police officers concerning a description of the perpetrator given by the complainant to the police immediately after the rape. Defendant argues that this testimony was inadmissible hearsay and improper bolstering through introduction of prior consistent statements.

We do not agree with defendant that such testimony is never admissible under any theory (see, People v Huertas, 75 NY2d 487 [decided today]). We do agree, however, that it was not properly received as evidence of the victim’s prompt outcry — the ground advanced by the People at trial. Evidence that the victim of a sexual attack promptly complained of the crime has long been deemed admissible as an exception to the hearsay rule, the premise being that prompt complaint was "natural” conduct on the part of an "outraged female,” and failure to complain therefore cast doubt on the complainant’s veracity; outcry evidence was considered necessary to rebut the adverse inference a jury would inevitably draw if not presented with proof of a timely complaint (Richardson, Evidence § 292 [Prince 10th ed]; see also, Note, A Matter of Time: Evidence of a Victim’s Prompt Complaint in New York, 53 Brooklyn L Rev 1087 [1988]).

Most of the evidence admitted on the theory of prompt outcry was, as defendant objected, clearly beyond the scope of the exception. As is apparent from its rationale, the exception permits evidence that a timely complaint was made. It does not allow the further testimony concerning details of the incident that was given here. Such testimony goes beyond the limited purpose of the exception, which is simply to show that a complaint was made (People v Deitsch, 237 NY 300; Baccio v People, 41 NY 265).

We conclude, however, that although it was error to admit the description testimony under the prompt outcry exception, the error does not warrant reversal. The complainant’s identification of defendant was strong, and consistent with her trial testimony concerning the rapist’s appearance. The rape took place in broad daylight and lasted almost half an hour. The complainant and the defendant were face-to-face during that time, and she again viewed him in broad daylight when he waited for her and spoke to her. When defendant was later arrested, he was carrying the knapsack containing the tattered manila envelope, which the complainant immediately recognized after identifying defendant in a lineup.

Given this overwhelming evidence of defendant’s guilt, there was no significant probability that the erroneously admitted testimony contributed to the jury’s verdict (People v Crimmins, 36 NY2d 230, 242). We are similarly unpersuaded that the verdict was affected by the fact that the complainant testified — over defendant’s objection — that when she saw defendant’s knapsack and the manila envelope, she told a detective that she recognized them, rather than giving that very same testimony in nonhearsay form.

Defendant’s remaining claims are without merit. It was not an abuse of discretion for the trial court to rule that evidence of defendant’s height would be limited to permitting defendant to stand for the jury to observe. Since the complainant had testified about the rapist’s height relative to her own, this form of evidence on the point was probative of the issue. Defendant’s allegations of prejudice resulting from the delayed disclosure of certain Rosario material relate primarily to its effect on the introduction of the "prompt outcry” testimony discussed above, and we have already concluded that this evidence does not require reversal. Finally, the only remedy requested — indeed demanded — by defense counsel for the inadvertent destruction of a police tape containing a radio transmission of the rapist’s description was an immediate mistrial, and the court did not abuse its discretion in denying that drastic remedy (see, People v Kelly, 62 NY2d 516).

Alexander, J.

(dissenting). I cannot agree that the improperly admitted hearsay testimony of three police officers who repeated the description given to them by the complainant can be considered harmless error in this one-witness identification case. Accordingly, I respectfully dissent and vote to reverse and remit for a new trial.

The trial evidence established that sometime after she left her home at 2:00 p.m. on August 14, 1986, the complainant walked down a ramp from a crosswalk over the Major Degan Expressway and was grabbed from behind by a man. The man forced her down an embankment into some bushes near the ramp and raped her there. The entire attack lasted approximately 20-25 minutes, after which the complainant climbed back up the embankment where she saw the man leave with a blue-green knapsack and a tattered manila envelope.

The People’s case against defendant consisted of the testimony of four police officers as well as that of the complainant. It was only the complainant, however, who allegedly saw defendant at the scene of the crime and thus it was only the complainant who could identify him. Yet before she testified, the People improperly introduced hearsay testimony through three police officers that on the date in question, the complainant reported that she had been raped and described her attacker to them. The officers were further permitted to testify, over repeated defense objections, to the details of the descriptions. Thus, Officer Frank Bettis testified that while he was on patrol with his partner, Officer Iris Ballester, they responded to a radio run and observed the complainant in the back seat of a patrol car. Bettis testified that the complainant told him that she had been raped and that the complainant told both Bettis and Ballester that the perpetrator was a black male in his early twenties, taller than she was, approximately 150 pounds, with a light beard, wearing a blue shirt and black pants and with a bluish green knapsack and a manila envelope. Bettis was also permitted to testify to the complainant’s description of the scene of the crime.

The prosecution’s next witness was Officer Ballester, who was permitted, again over defense objection, to repeat the same description that the complainant had given both Bettis and Ballester.

The third witness permitted to testify to the complainant’s description of her attacker was Police Officer Bruce Jackson. Jackson testified that at 4:20 p.m. on the date of the incident the complainant ran up to his car crying for help and saying that she had been raped. As with Officers Bettis and Ballester, Jackson was also permitted to testify, over defense objection, to the description given to him by complainant. According to Jackson, the complainant described her attacker as wearing black pants and a short-sleeved blue shirt and that he had a beard and carried a blue-green knapsack.

It was only after the admission of all this testimony that the complainant was called to testify. She testified that although the attack occurred in mid-afternoon on a bright day and lasted for a 20-to-25-minute period, her assailant repeatedly ordered her not to look at him and that she could not take her eyes off the man’s eyes throughout the attack. She then described her attacker as a black man, approximately 20 or 22 years old, who had short hair, a moustache, and a "beard-like” and was well-groomed. The complainant further testified that he wore a blue T-shirt, black khaki pants and burgundy, brief-style underwear. Additionally, the complainant testified that she had previously identified the defendant in a lineup and also made an in-court identification. On cross-examination, defense counsel established that the complainant was extremely upset as a result of the incident, that she became hysterical when reporting the rape and describing her attacker and when she viewed the lineup more than two weeks later. Defense counsel also sought to establish the unreliability of her identification by demonstrating inconsistencies in her statements as to the assailant’s height and his beard.

As this review of the trial evidence makes clear, the People’s case hinged upon the complainant’s ability to identify the defendant as her attacker. Indeed, defendant was not arrested at the scene or even on the day of the crime. It was only the complainant’s testimony that could link him to the crime. The complainant’s trial testimony as to her attacker’s description was not particularly detailed, but, whatever its weaknesses, by the time the jury heard the complainant’s testimony, its reliability had been established by the prior repetition of her description by three police officers. As we recognized in People v Trowbridge (305 NY 471, 477), "[nothing need be said here to emphasize the nature of a conviction based only upon identification testimony such as present here —especially where identity is based upon brief observation by a single witness and where there is no proof of the [crime] except the testimony of the same single witness. We would be reluctant to say in such a case that any error which is apt improperly to enhance the weight of such testimony is a technical one which may be disregarded.” Here, it is inconceivable that description evidence, which the majority concedes was erroneously admitted, did not bolster the complainant’s own identification testimony and therefore contribute to the verdict.

Accordingly, I dissent and vote to reverse. The defendant is entitled to a new trial.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Alexander dissents and votes to reverse in an opinion.

Order affirmed in a memorandum. 
      
       Our recognition that such testimony may be admissible of course does not constitute a holding that four witnesses may give this identical evidence (see, People v Ventimiglia, 52 NY2d 350, 356; People v Fogel, 97 AD2d 445, 446).
     