Summary
In People v Mancini (213 AD2d 1038 [4th Dept 1995], lv denied 85 NY2d 976 [1995]), the Court held that statements made to a child protective services investigator were properly admitted in criminal prosecution where the defendant was not in custody when he made the statements to the investigator.
Summary of this case from People v. GreeneOpinion
March 17, 1995
Appeal from the Erie County Court, Rogowski, J.
Present — Green, J.P., Wesley, Callahan, Doerr and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant's conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). County Court properly denied the motion to suppress the statements defendant made to the child protective services investigator. The record supports the court's conclusion that defendant was not in custody when he made those statements (see, People v. Yukl, 25 N.Y.2d 585, 589, mot to amend remittitur denied 26 N.Y.2d 845, 883, cert denied 400 U.S. 851; People v. Shawcross, 192 A.D.2d 1128, lv denied 82 N.Y.2d 726).
We reject the contention of defendant that reversal is required either because the prosecutor failed to disclose alleged Brady material or because the prosecutor delayed in turning over Rosario material.
Reversal is required, however, because the court erred in permitting the People's character witness to testify on rebuttal about specific acts committed by defendant against her when she was a foster child in defendant's home during the 1960s. The acts testified to were much the same as those for which defendant was being tried. It is well established that when, as here, a defendant puts his character in issue by calling witnesses to testify about defendant's good reputation in the community for the particular trait involved in the crimes charged, the People may, in rebuttal, call a contradictory witness to testify, if it is the case, that defendant's reputation is otherwise (see, Richardson, Evidence §§ 151-152 [Prince 10th ed]; see also, People v. Beaulieu, 40 A.D.2d 942). It is equally well established that a character witness may not testify to specific acts of a defendant and may not give his or her personal opinion of defendant's character based on personal knowledge (see, Richardson, Evidence, op. cit., § 151). "The witness is strictly limited to testimony concerning the defendant's reputation" (id., § 151; see, People v. Van Gaasbeck, 189 N.Y. 408). Here, the testimony of the People's rebuttal character witness was not so restricted. Moreover, the error is not subject to a harmless error analysis because the proof of defendant's guilt, without reference to the error, is not overwhelming (see, People v. Crimmins, 36 N.Y.2d 230, 241).
Lastly, in light of our determination, we do not address the contention of defendant that the sentence is either unduly harsh or severe.