
    The People of the State of New York, Respondent, v Ambrose J. Mountain, Appellant.
    Argued September 11, 1985;
    decided October 24, 1985
    
      POINTS OF COUNSEL
    
      Peter L. Rupert for appellant.
    I. The closing of the courtroom to the general public during the victim’s testimony denied appellant his constitutional right to public trial within the meaning of the 6th Amendment. (People v Jelke, 308 NY 56; People v Hinton, 31 NY2d 71, 410 US 911; People v Jones, 47 NY2d 409, 444 US 946; People v Joseph, 59 NY2d 496.) II. The court below improperly restricted the cross-examination of the alleged rape victim regarding sexual intercourse two nights prior to the crime and such restriction violated appellant’s right to confrontation. (People v Mandel, 48 NY2d 952, 446 US 949, 448 US 908; People v Owens, 97 AD2d 855; People v Conyers, 86 Misc 2d 754, 63 AD2d 634; Brookhart v Janis, 384 US 1.) III. Prosecutorial misconduct deprived appellant of a fair trial. (People v Steinhardt, 9 NY2d 267; People v Alicea, 37 NY2d 601; People v Savvides, 1 NY2d 554; People v Crandall, 48 AD2d 946; People v Cook, 37 NY2d 591; People v Sorge, 301 NY 198; People v Schwartzman, 24 NY2d 241, 396 US 846; People v Robinson, 27 NY2d 864; People v Rosenfeld, 11 NY2d 290; People v Sandoval, 34 NY2d 371.) IV. The gun holster of appellant was improperly removed from evidence by the court below. V. The unreasonable delay in the court admitting portions of the victim’s hospital records deprived appellant of a fair trial. VI. The errors in the court below were not harmless and require a new trial. (People v Crimmins, 36 NY2d 230.)
    
      
      John B. Poersch, District Attorney (Thomas W. Hefferon of counsel), for respondent.
    I. Defendant-appellant was never deprived of his right to a public trial. (People v Jones, 47 NY2d 409; People v Rickenbacker, 50 AD2d 566; People v Jelke, 308 NY 56; People v Glover, 60 NY2d 783; People v Salcedo, 98 AD2d 961; People v Patterson, 53 NY2d 829; People v Williamson, 51 NY2d 801; People v Hagan, 24 NY2d 395; United States ex rel. Bruno v Herold, 408 F2d 125; People v Monaco, 14 NY2d 43.) II. The trial court’s CPL 60.42 ruling did not impair or impede defendant-oppellant’s right to confrontation. (People v Owens, 63 NY2d 824; People v Rockwell, 97 AD2d 853; People v Westfall, 95 AD2d 581.) III. The conduct of the prosecutor was fair and proper. (People v Schwartzman, 24 NY2d 241; People v Webster, 139 NY 73; Third Great W. Turnpike-Road Co. v Loomis, 32 NY 127; People v Ocasio, 47 NY2d 55; People v Sandoval, 34 NY2d 371; People v Rubin, 101 AD2d 71; People v Nuccie, 57 NY2d 818; United States v Bubar, 567 F2d 192; United States v Dioguardi, 492 F2d 70, 419 US 873; United States ex rel. Leak v Follette, 418 F2d 1266, 397 US 1050.) IV. The gun holster produced in the trial court was never properly in evidence. V. No unreasonable delay occurred in the admission of the hospital record. VI. Defendant-appellant’s trial was free of reversible error. (People v Crimmins, 36 NY2d 230; People v Kennedy, 47 NY2d 196; People v McKenna, 77 AD2d 926; People v Banks, 77 AD2d 742; Nelson v Easton & Amboy R.R. Co., 7 Misc 656; Matter of Gaylord II., 106 AD2d 823; People v Eddy, 95 AD2d 956; People v Torello, 94 AD2d 857; People v Karpowski, 99 AD2d 118.)
   OPINION OF THE COURT

Chief Judge Wachtler

The defendant, a former police officer, has been convicted of raping and sodomizing a woman being held for arraignment in a detention cell at a police station. The Appellate Division affirmed the conviction and the defendant has appealed by leave of a Judge of this court.

The defendant raises a number of issues, most of which relate to the admission or exclusion of evidence at the trial. The primary issue concerns efforts by the prosecutor to establish a relationship between the defendant’s blood type and the blood type found in the assailant’s sperm, a procedure universally accepted in other jurisdictions but previously not allowed in this State in cases, such as this, where the blood type is a common one.

In the early morning hours of Saturday, September 12, 1981 the Schenectady Police arrested a young woman on a minor charge. She was transported to a police station where she was held in a detention cell for arraignment on Monday morning. On the day of the arrest the defendant was a police officer assigned to that station as a telephone operator. Although his duties did not require him to care for the female detainees, who were in the charge of a matron, he approached the complainant several times during the first day of her detention. He initially inquired about her bail and then suggested he could help her or indicated that he was attempting to raise money for her release. He also called her and gave her a telephone number at which he could be reached. On another occasion that day he gave her a note asking her to call him at a certain number if she was released.

On Sunday afternoon the defendant again came to the complainant’s cell. He unlocked the door and asked her if she was ready and when she said she was, he pointed to something behind her. As she turned the defendant grabbed her throat, cupped his hand over her mouth, told her to pull down her pants and warned her that he would kill her if she screamed. He then forced her to her knees and proceeded to rape her. After experiencing some difficulty, he told her to perform oral sodomy on him. When that act was completed the defendant left and the complainant spit his sperm into a paper cup from her lunch tray.

She did not inform the matron then in charge what had occurred. However, when that matron was relieved she soon informed the new matron that she had been raped and that she had a "specimen”. When she left her cell the following morning she crushed the cup and put it in her pocket. At her arraignment the charge against her was dismissed because the person who had made the complaint against her did not appear. She then informed the court that she had been raped and had a specimen. At the court’s suggestion she reported the incident to a police officer in the building. After her release she went to her girlfriend’s house and then immediately to St. Clare’s Hospital where she again reported the rape and produced the cup. The hospital examination revealed sperm in her vagina. A laboratory examination of the cup showed that it contained sperm. A blood test of the sperm indicated that it contained type A blood.

The defendant was indicted for rape, sodomy, and official misconduct. The prosecutor applied for and was granted an order directing the defendant to submit to a blood test and provide a handwriting sample. Based on the handwriting sample an expert concluded that the note the complainant had received in the detention cell was written by the defendant. The police investigatian also revealed that the telephone number on the note was registered to the security office in St. Clare’s Hospital where the defendant was employed part time as a security guard.

In his opening statement the prosecutor informed the jury that they were going to hear testimony with regard to the blood type of the sperm found in the cup, as well as the blood type of the defendant. The defendant objected to the introduction of this evidence but the court sustained the objection only to the extent of excluding evidence of the defendant’s blood type. The blood type of the sperm in the cup and the fact that a blood test was performed on the defendant, together with the other evidence set forth above, was submitted to the jury. The defendant did not testify on his own behalf.

During their deliberations the jury asked the court whether the defendant’s blood type was in evidence and were informed that it was not. The jury found the defendant guilty of rape, sodomy, and two counts of official misconduct. The Appellate Division unanimously affirmed (105 AD2d 494).

On this appeal the defendant urges that the court erred in permitting the prosecutor to introduce evidence that the assailant’s sperm contained type A blood, and allowing "references” to the defendant’s blood type. He relies on People v Robinson (27 NY2d 864).

In the Robinson case this court stated at page 865: "Proof that the defendant had type 'A’ blood and that the semen found in and on the body of the decedent was derived from a man with type 'A’ blood was of no probative value in the case against defendant in view of the large proportion of the general population having blood of this type and, therefore, should not have been admitted”. That case is distinguishable because there the relationship between the defendant’s blood type and the assailant’s was established. In the case now before us the connection was not made because the defendant successfully objected to the introduction of evidence of his blood type. It may be, as the defendant suggests, that the jury was confused by the evidence of blood testing and typing. The evidence was so nearly complete that an inattentive jury might have been misled into believing that the relationship had been established. On the other hand, the jury did ask the court during deliberations whether the defendant’s blood type was in evidence and was informed that it was not. Thus it appears that the defendant was not prejudiced by the proof because the jury detected the gap and realized that the People had not proven that the defendant had the same blood type as the rapist.

In essence the defendant urges that the Robinson rule should be extended to make it reversible error whenever the court admits evidence that the assailant had a common blood type. However, thorough consideration of the Robinson rule shows that it is not well founded and should no longer be followed.

The Robinson decision itself is a two-line memorandum in which the court stated the rule quoted above but nevertheless affirmed the conviction on harmless error grounds (People v Robinson, 27 NY2d 864, supra). It was followed in People v Macedonio (42 NY2d 944), where the conviction was reversed with the court noting in another brief memorandum, the introduction of the blood evidence and the fact that the prosecutor had introduced a confession obtained in violation of the defendant’s constitutional rights. More recently in Matter of Abe A. (56 NY2d 288, 299), where the blood type at issue was found in less than 1% of the population, Robinson was found inapplicable. The court stated at page 299: "The scientific validity and reliability of tests used to identify the type of blood a particular individual carries and to determine whether the blood of one person matches that of another are well recognized in both the medical and legal communities [citations omitted]. Moreover, the relative rarity of the assailant’s type of blood relegates arguments as to remoteness to the realm of weight rather than admissibility”.

The Robinson rule has been criticized by noted scholars (see, e.g., McCormick, Evidence § 205, at 619 [3d ed]) and in other jurisdictions has been universally rejected (see, People v Lindsey, 84 Cal App 3d 851, 149 Cal Rptr 47; Admissibility, Weight, and Sufficiency of Blood-Grouping tests in Criminal Cases, Ann., 2 ALR4th 500, 511-512). For a time it appeared that Iowa would accept the rule (see, State v Peterson, 219 NW2d 665) but now it is clear that New York stands alone (see, State v Mark, 286 NW2d 396, 412-413 [Iowa]; McCormick, Evidence § 205, at 619, n 31 [3d ed]).

The basic problem with the rule is the premise on which it is founded. Although blood grouping may only serve to show that the defendant and the assailant are part of a large group having that particular characteristic, it does not follow that such proof completely lacks probative value. When identity is in issue, proof that the defendant and the perpetrator share similar physical characteristics is not rendered inadmissible simply because those characteristics are also shared by large segments of the population. For instance, evidence that the person who committed the crime was white would not be excluded although that may in-elude 80% of the population. Similarly, evidence of a person’s sex, which would include roughly 50% of the general population, is routinely accepted as having some probative value with respect to identification. Proof of such common characteristics, of little value individually, may acquire great probative value when considered cumulatively (McCormick, Evidence § 171, at 364-365 [1954]). Thus, the Robinson rule goes too far in holding that evidence showing that the defendant and the assailant have type A blood, is of no probative value merely because that includes 40% of the population (see, Matter of Abe A., supra, at p 299, n 4).

It appears that the only justification for excluding such evidence is a fear that the jury may accord it undue weight, beyond its probative value, because of its scientific basis (cf. Richardson, Evidence § 147 [10th ed]). That, however, can generally be avoided by instructions, where requested, emphasizing the fact that it is only circumstantial evidence and noting, perhaps, the percentage of the population involved. In cases where the defendant can show that the potential prejudice outweighs the probative value the court may in its discretion exclude the evidence.

In sum, there is no showing that the defendant was prejudiced by the blood test evidence in this case, and in future cases such evidence should be admissible unless prejudice is shown.

The defendant also claims that the court made erroneous evidentiary rulings on collateral matters concerning the victim’s credibility.

First, the defendant urges that the court improperly permitted the prosecutor to bolster the victim’s credibility with respect to her motive for bringing a civil suit based on the sexual assault. At the trial the defendant introduced evidence that the victim had falsely accused him in order to recover a substantial monetary award in the pending civil action. In rebuttal the People introduced proof that the victim had originally consulted a lawyer because she was afraid and intended to donate any money realized from the suit, in excess of counsel fees, to an organization known as "Rape Crisis”. In support of his contention the defendant relied on two witnesses, with criminal records, who testified to statements they had allegedly heard the victim make. The prosecutor, in rebuttal, relied on the victim’s lawyer to testify to statements and instructions she had allegedly given to him in connection with the pending civil suit.

Although the defendant now contends that the People should not have been permitted to bolster the victim’s credibility, his objection at trial was to relevancy. That objection was properly overruled since the evidence was relevant to rebut the defendant’s contention that the victim had a pecuniary motive for testifying falsely against the defendant.

The defendant also urges that the type of proof was improper because the prosecutor did not rely on the victim’s own testimony but on statements she allegedly made to another outside the courtroom. He claims that this proof should have been excluded as inadmissible hearsay. However, when the victim’s attorney was questioned with respect to his client’s instructions for the disposition of any money that might be realized from the civil suit the defendant did not object on hearsay grounds. He claimed instead that the question was irrelevant and also inadmissible because the victim’s statements were not made in the defendant’s presence. The court properly overruled those objections.

A second credibility ruling which the defendant claims was error relates to a holster belonging to him which the court excluded from evidence. At the trial the victim testified that during the attack the defendant wore a holster that completely covered his gun. The defendant claims that the holster he offered in evidence would have shown that the victim was not truthful on this point because the holster left the handle of the gun exposed.

The holster, however, was for the defendant’s "off-duty” gun, and was excluded by the court on the ground that the defendant had not established a proper foundation to show that it was the holster he wore on the day of the crime. The record on this point shows that the defendant produced his off-duty gun in a holster, inside an evidence envelope. The issue focused on the identity of the gun or weapon which was explored at some length, with only incidental references to a holster. In fact the stray comments on the holster were, for the most part, volunteered by the defendant’s witnesses. There was no direct evidence that this was the holster the defendant was wearing on the day of the crime. Neither of the witnesses called by the defendant with respect to his off-duty gun were able to state which gun or holster the defendant was wearing on the day of the crime. When the court informed the defendant that there was no foundation for the admission of the holster the defendant did not offer to cure the defect nor did he alert the court to the reason why he wanted the holster admitted.

Although a technical argument could be made, as the dissenter has done here, that there was some foundation for the admission of the holster, it is clear from the record that defense counsel focused the attention of the court and the prosecutor on the gun. He created the impression that he was seeking to introduce the gun or weapon, and that the holster was of little or no significance. Indeed, even when the court informed the defendant that it was the court’s understanding that only the weapon was in issue, the defendant did nothing to correct the impression he had created by informing the court of the significance of the holster. Nor did he offer to cure the defect by seeking to call a witness who could testify that he had seen the defendant wear his "off-duty” gun and holster "on duty” on the day of the crime (cf. People v Olsen, 34 NY2d 349). Thus we find no error in the court’s decision to exclude it.

The defendant also contends that the trial court deprived him of a public trial and improperly precluded him from cross-examining the victim pursuant to CPL 60.42 (4). These issues were discussed by the Appellate Division and we agree with that court, for the reasons stated in its memorandum (105 AD2d 494, supra), that the trial court did not err as alleged. We have considered the defendant’s remaining points and have found that they lack merit.

Accordingly, the order of the Appellate Division should be affirmed.

Meyer, J.

(dissenting). I agree with the majority opinion except insofar as it holds that the objections to exclusion of the holster and admission of the lawyer’s testimony concerning the proceeds of complainant’s suit against the city were not properly preserved. Because I conclude that these errors were preserved and were not harmless, I would reverse and order a new trial.

With respect to the holster, it is difficult to understand the majority’s statement that defendant’s attorney "created the impression that he was seeking to introduce the gun or weapon, and that the holster was of little or no significance.” (Majority opn, at p 205.) The alleged victim had testified that during the oral sex act she was forced to perform she was kneeling in front of defendant and reached for his gun, but that "[h]is gun didn’t stick out. The holster covered the whole gun”, that "Í was going to grab his gun, but the holster covered the whole gun,” and that "there was like this snap part, and I figured if I snapped it he would feel it, and he’d break my neck or kill me.” Other than to contradict that testimony, there was absolutely no reason for defendant to introduce the gun at all.

And although it is true that there was no direct evidence that the holster introduced with the off-duty gun was the holster worn on the day of the alleged crime (majority opn, at p 204), there was evidence from which the jury could infer that indeed it was the holster worn that day and there is no question that the Trial Judge admitted both defendant’s off-duty gun and holster into evidence. The testimony of Officer Andriano, of the Schenectady Police Department, included the following:

(Defendant’s Exhibit No. B-6 was marked for identification.)

"the court: This is his off-duty gun?

"the witness: Off-duty revolver.

"redirect examination by mr. grasso [defendant’s attorney]:

"Q. Did you ever have occasion to see him wearing his weapon on duty?

"A. Yes, sir.

"Q. Is that weapon that’s in that exhibit marked B-6 similar in size, shape, and nature of the holster?

"A. From what I saw of it, yes.

"Q. That’s your recollection that’s the same type of weapon? You picked it up from him when you picked it up to bring it to the Department?

"A. From what I saw that’s the same weapon and holster from what I saw.

"the court: Why do you call it off-duty?

"the witness: We’re issued a service revolver on duty. You could wear it on duty. An off-duty gun is much smaller and lighter weight. If this is the same gun it’s a five-shot Smith and Wesson .38 special.

"mr. gebell [Assistant District Attorney]: Your Honor, again, I think that the only issue here is the relevancy of a particular gun worn on a particular day. I don’t believe that that witness has in any way identified the gun. In fact, he’s testified he doesn’t know if he had a gun on that day, and I think that it’s irrelevant.

"the witness: I didn’t work that day, that’s why.

"mr. gebell: Well, Your Honor, then it speaks for itself.

"the court: You all done with this witness?

"mr. grasso: Yes. Just one other question before you leave.

"Q. (By Mr. Grasso) How often did you see Officer Mountain priorto, on any regular basis, prior to September 13th of1981?

"A. Every day he worked, and every day I worked for the past 12 years.

"Q. And were you familiar enough with his gun to describe it in the manner in which you just did?

"me. gebell: Your Honor, that’s a leading question.

"the court: Overruled.

"the witness: Yes, sir.

"Q. (By Mr. Grasso) That description you gave is from your recollection of having seen him with it on a regular basis?

"A. Yes, sir.

"Q. Is that the weaponyousaw him wearing at work?

"A. It appears to be the same weapon and holster, yes.

* * *

"Q. (By Mr. Grasso) And what kind of gun is it?

"A. It’s a .38 special Smith and Wesson five-shot snubnose.

"Q. And is that — does that fit the description of the gun you saw him wearing on a regular basis when you saw him?

"A. Yes. It does.

"Q. Does that fit the description of the gun you picked up and brought from him to the Department?

"A. Yes.” (Emphasis supplied.)

A second defense witness, Officer Mulligan, testified with respect to the weapon carried by defendant when on duty as follows:

"Q. Are you familiar with the fact that whether or not Officer Mountain carries a weapon when he’s on duty?

"A. Yes. He did.

"Q. And do you recall what type of weapon he carried?

"A. It was an — I would say a .38 snub nose blue.

"Q. Do you recall what kind of holster he had?

"A. As I recall it was a black leather holster with a strap over the hammer.

"Q. Okay. Did it have a handle on the gun?

"A. Yes.

"Q. Can you tell us whether or not the handle stuck out of the holster or not?

"A. Yes. It did. It was just, as I recall, it was just a strap over the hammer, a thin strap over the hammer itself.”

The Department’s range officer, Officer Martin, whose duty it was to register off-duty guns, testified that defendant’s off-duty gun had been registered on September 28, 1981, which was 15 days after the alleged rape and sodomy, that he did not know whether defendant was wearing the weapon on September 13, 1981, because he, Martin, was not on duty that day. He also identified defendant’s service revolver and testified that an officer on duty would be required to wear a service revolver, but when he was inside was "not required to wear a weapon. He can wear his off-duty weapon.” Defendant’s attorney then offered Exhibit B-6, consisting of the off-duty gun and holster, in evidence, saying, "They have been brought here and adequately identified. Whatever weight the jury wants to give that weapon, I think they should be introduced.” The following colloquy and ruling then ensued:

"the court: Are you saying the offer goes to the weight?

"mr. grasso: Yes.

"the court: Rather than the admissibility?

"mr. gebell: I have no objection to put in the gun worn that day. With regard to this weapon and chain of custody, with regard to this weapon which didn’t appear until more than two weeks after the incident and its production with regard to Officer Andriano’s testimony as to how he got it, he didn’t request the one that he was wearing on that day. There was no mention of that. It’s a self-serving kind of piece of evidence, Your Honor.

"the court: Well, I’m going to receive it and leave it up to the jury. You have heard all the arguments. You decide what weight to give to these particular exhibits.”

Just prior to summations, however, the District Attorney raised the question whether the gun and holster or only the gun had been admitted saying, "I don’t recall any testimony with regard to a holster at all.” The Trial Judge, based upon his recollection, mistaken as the testimony of Andriano and Mulligan demonstrates, that "there was nothing said about the holster”, ruled that "the gun is in evidence. The holster is not”. Their testimony having provided sufficient foundation for admission of the holster and having sufficiently described the appearance of the holster, there was no reason for defendant’s attorney to offer additional evidence of the conflict with the victim’s description of the holster or otherwise to seek to "cure the defect” as the majority suggests (majority opn, at p 204).

That the holster was critical evidence for the defense cannot be doubted, for not only had the alleged victim testified as noted above, but also it is clear from the jury’s request during deliberation to see the holster for the gun, which the court denied, stating that the holster was not in evidence, that it related the victim’s credibility to the holster.

Moreover, the error cannot be held to have been harmless, for the evidence against defendant was far from overwhelming. The victim was the only witness to the multiple sex attacks upon her alleged to have occurred in a cell open to the view of anyone passing by, only a short distance from the matron’s office, and in a cell block which could be entered only with keys kept by the matron, through a door which made a loud bang when it closed. The matron testified that she was on duty on September 13th, between 12 noon and 7 p.m., that the keys were in her possession all the time, and that the victim said nothing to her concerning an attack. Neither she nor the desk officer, whose desk was close to the female cell block, heard a noise such as the cell block door made. Moreover, both she and the desk officer testified that they saw the victim at least once each half hour and saw nothing amiss. Two other witnesses testified that the victim had admitted that she had set defendant up in a plan devised with the man she lived with and expected to get a considerable amount of money, and that defendant had not raped her. That she produced at the hospital a cup into which she said she had, immediately after the incident, spit the sperm ejaculated into her mouth and which was indeed later proved to have contained sperm does not make the evidence against defendant overwhelming in light of the alleged admission that defendant was being set up, the fact that the cup was not observed by anyone until turned over to a nurse at the hospital the next day, and the fact that the victim stopped at the apartment of a friend between the time she was released and the time she arrived at the hospital.

Although the holster error is enough by itself to require a new trial, admission of the victim’s attorney’s testimony concerning donation of the proceeds of her suit against the city was likewise error. The Appellate Division held it admissible under the recent fabrication exception, but the victim never having testified herself that she intended to make such a donation, there was no recent fabrication to which it could relate. Nor can I agree that defendant’s attorney did not object on hearsay grounds, as the majority holds. It is true that he did not use the word "hearsay,” but, as the majority notes, he did object on the grounds that the victim’s conversation with respect to the proceeds of the lawsuit was inadmissible because out of the presence of the defendant. The Trial Judge had previously sustained defendant’s attorney’s objection "to anything [the victim] said out of the presence of this Defendant,” indicating that he understood the objection to be but a shorthand way of saying that had such conversation taken place in defendant’s presence it would be admissible as an admission which, though hearsay, "is admitted as an exception to the hearsay rule” (Richardson, Evidence § 210, at 187 [Prince 10th ed]; Fisch, New York Evidence § 792, at 460 [2d ed]). Were this the only error and were the other evidence against defendant overwhelming, it could be disregarded as harmless for, had the victim been asked on direct examination about the proceeds of the lawsuit, her direction to the attorney might have been a prior consistent statement admissible under the recent fabrication rule after the defense testimony of a set-up came in (see, People v Singer, 300 NY 120; Giordano v Eastern Utils., 9 AD2d 947). As it was presented, however, its admission was error.

Judges Jasen, Simons, Kaye and Titone concur with Chief Judge Wachtler; Judge Meyer dissents and votes to reverse in a separate opinion in which Judge Alexander concurs.

Order affirmed.  