        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

230
KA 12-00111
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT GARROW, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered June 2, 2011. The judgment convicted defendant,
upon a jury verdict, of predatory sexual assault against a child, rape
in the first degree (two counts) and endangering the welfare of a
child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted on counts
one through four of the superseding indictment.

     Memorandum: Defendant appeals from a judgment convicting him,
following a jury trial, of predatory sexual assault against a child
(Penal Law § 130.96), two counts of rape in the first degree (§ 130.35
[3], [4]) and one count of endangering the welfare of a child (§
260.10 [1]). We agree with defendant that County Court committed
reversible error by violating the core requirements of CPL 310.30 in
failing to advise counsel on the record of the contents of a
substantive jury note before accepting a verdict (see People v Silva,
24 NY3d 294, 299-300; People v O’Rama, 78 NY2d 270, 277-278).
Defendant’s contention does not require preservation inasmuch as it
involves a mode of proceedings error (see Silva, 24 NY3d at 299-300;
People v Walston, 23 NY3d 986, 989). We therefore reverse the
judgment and grant a new trial on counts one through four of the
superseding indictment.

     We reject defendant’s further contention that the court erred in
permitting the four-year-old victim’s mother to testify with respect
to the substance of the victim’s disclosure under the prompt outcry
exception to the hearsay rule (see People v McDaniel, 81 NY2d 10, 16-
17). The testimony revealed the complaint, i.e., that defendant hurt
the victim’s vagina with his penis, without “its accompanying details”
(id. at 17; see People v Stalter, 77 AD3d 776, 777, lv denied 15 NY3d
                                 -2-                           230
                                                         KA 12-00111

956).

      Defendant failed to preserve for our review his contention that
the court’s refusal to permit evidence regarding the victim’s
disclosure of sexual abuse by another individual to her mother,
defendant and a police witness, violated his constitutional rights to
present a defense and to cross-examine witnesses (see People v
Simmons, 106 AD3d 1115, 1116, lv denied 22 NY3d 1043), and we decline
to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).
Inasmuch as we are granting a new trial, however, we note that, to the
extent that the court determined that evidence of a prior
victimization was not admissible because it is prohibited by CPL
60.42, i.e., the rape shield law, we conclude that the court failed to
exercise its discretion to determine whether, under the circumstances
presented here, the evidence may “be relevant and admissible in the
interests of justice” (CPL 60.42 [5]; cf. People v Halter, 19 NY3d
1046, 1049-1050; see generally People v Williams, 81 NY2d 303, 311-
314).

     Defendant also failed to preserve for our review his contention
that he was denied a fair trial by prosecutorial misconduct during
cross-examination and summation (see CPL 470.05 [2]), and we decline
to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). We
nevertheless note our strong disapproval of the prosecutor’s tactics
during summation in appealing to the sympathy of the jury by stating,
inter alia, that it should “tell [the victim] that her suffering has
not been in vain, to tell her that justice is coming”; in denigrating
both the defense strategy and the defense attorney personally; and in
mischaracterizing the DNA evidence, stating that it “matched
[defendant].”

     In light of our determination to reverse the judgment and grant a
new trial, we need not address defendant’s remaining contentions.




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
