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People v. Aybinder
Citations: 215 A.D.2d 181; 626 N.Y.S.2d 150; 1995 N.Y. App. Div. LEXIS 4959
Court: Appellate Division of the Supreme Court of the State of New York; May 9, 1995; New York; State Appellate Court
Judgment rendered by the Supreme Court, New York County, on November 17, 1993, affirmed the conviction of the defendant for first-degree sodomy, sentencing him to 5 to 15 years. The court addressed juror bias, noting a juror's expressed negative feelings towards two witnesses, which warranted their discharge for being grossly unqualified (CPL 270.35; People v Buford). The juror's statements indicated that he felt the witnesses were not taking the case seriously, leading to concerns about his ability to impartially evaluate their credibility. The court found the juror's distinction regarding his bias illogical and rejected any speculation about partiality. The court admitted the complainant's detailed testimony about the sexual assault given shortly after the incident, emphasizing that the complainant's limited English required police questioning to clarify the events. Any testimony exceeding the "prompt outcry" exception was deemed harmless. The defendant's argument that the jury instruction on forcible compulsion altered the prosecution's theory was rejected. The court clarified that the prosecution was not confined to the theory of actual physical force, as the indictment and evidence presented allowed for consideration of both physical acts and implied threats. All remaining claims from the defendant were found to lack merit. The decision was concurred by Justices Ellerin, Wallach, Kupferman, Nardelli, and Mazzarelli.