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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 166
The People &c.,
            Respondent,
        v.
Daniel A. Ludwig,
            Appellant.




            Brian Shiffrin, for appellant.
            Matthew Dunham, for respondent.



READ, J.:
            In this child sexual abuse case, County Court permitted
the People to elicit testimony about complainant's prior
consistent statements disclosing the abuse, and precluded
defendant's mother from testifying about a prior allegedly
inconsistent statement made by complainant.   We conclude that the
trial judge did not abuse his discretion when he made these
evidentiary rulings.   The challenged testimony was admissible for
the nonhearsay purpose of explaining to the jury how and when the
sexual abuse came to light, resulting in an investigation and
defendant's eventual arrest; and defendant's mother's proffered

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testimony was inadmissible hearsay not subject to any exception.
                                I.
            Complainant, who was born in 1998, resided with her
father, defendant Daniel A. Ludwig, and her mother until April
25, 2008, when defendant moved out of the marital home and into
the basement of his mother's house.     Complainant, who was in
third grade when her parents separated, lived with her mother,
but she and her younger brother and sister visited their father
on weekends.   Defendant and complainant's younger brother slept
in the basement, while complainant and her younger sister slept
upstairs.   The basement was roughly divided into a laundry and
bathroom on one side, and two beds (one for defendant, the other
for complainant's younger brother), two televisions and a
computer on the other side.
            According to complainant, defendant sexually abused her
when she was in third and fourth grades.     The abuse always took
place in defendant's basement living quarters.     The first time,
she had been playing upstairs with her younger sister when
defendant called her down to the basement.     Defendant was only
wearing underwear, and complainant, seeing this, "got scared" and
"tried to get back upstairs."   But defendant called her back, and
she returned "to see what he wanted."     Defendant stood up, pulled
down his underwear and told complainant to kneel, "grabbed [her]
hair" and directed her to suck his penis, which she did for "at
least a minute or two minutes."      After such incidents, she "would


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usually go upstairs and just try not to think about it and just
play" with her siblings.
             Complainant recalled another specific occasion when
defendant sexually abused her.    She was watching an episode of
"The Wizards of Waverly Place," a children's program broadcast on
ABC's Disney Channel, in her bedroom; the plot involved a tutor
and the color green.    Defendant summoned complainant down to the
basement and "did the same thing that the first time it
happened."    This incident took place during complainant's school
vacation period between fourth and fifth grades, the summer of
2009.   On another occasion soon afterwards, complainant was
already in the basement when defendant went into the bathroom and
called her to follow him.    When defendant pulled his pants down,
complainant objected "Why do I need to do it?" and defendant
backed off.    This was the last time he attempted to sexually
abuse her.
             Complainant kept the sexual abuse a secret because
"[she] was scared" and "afraid" that defendant "would do
something to [her]" if she confided in anyone.    But during the
summer after the abuse ceased, on August 3, 2010, complainant let
the secret slip.    That day, she and her half-brother, who is
three years older, were playing in the backyard of their mother's
home.   Complainant remarked to her half-brother that "the
backyard smelled like something weird."    He asked "Like what?"
and complainant "kind of said what happened with [her] dad."       Her


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half-brother went "inside to the living room" and repeated
complainant's disclosure to their half-sister, who informed their
mother.   Complainant acknowledged that when her mother asked her,
she confirmed the sexual abuse; this was the "only time" she ever
addressed this topic with her mother.
             In October 2010, defendant was indicted on one count of
predatory sexual assault against a child (Penal Law § 130.96);
specifically, that between April 25, 2008 and June 30, 2009,
defendant, being 18 years of age or more, committed the crime of
course of sexual conduct against a child in the first degree
(Penal Law § 130.75 [1] [b]) in that he engaged in two or more
acts of sexual conduct, which included at least one act of sexual
intercourse, oral sexual conduct, anal sexual conduct or
aggravated sexual contact, with complainant, who was less than 13
years old.    At defendant's jury trial in County Court in August
2011, she testified on direct examination as narrated above.
             On cross-examination, the defense attorney and
complainant engaged in the following colloquy:
             "[DEFENSE ATTORNEY] Do you remember having a
             conversation with your Aunt [P.] about whether your
             mother was pregnant?
             "[COMPLAINANT]   No.
             "[DEFENSE ATTORNEY] No? Do you remember telling your
             Aunt [P.] that your mother wasn't pregnant?
             "[COMPLAINANT]   No.
             "[DEFENSE ATTORNEY]    Do you remember telling your Aunt

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             [P.] that you only tell what your mother tells you to
             say?
             "[COMPLAINANT]   No."
             On redirect examination, the prosecutor tried to coax
complainant into elaborating on her testimony that the backyard
smelled "weird" by asking if she could "remember" or "describe"
the smell.    Complainant demurred.      When the prosecutor then asked
if the smell "remind[ed]" her of anything, complainant responded
that "[t]he smell only reminded me of what happened with my dad."
             After complainant's testimony, the People called her
half-brother to the witness stand.           He recounted that in August
2010, while playing with complainant in the backyard of their
mother's home, she remarked that "it smelled like penis in the
backyard," and he "asked her how she knew."          When the prosecutor
asked him for complainant's reply, her half-brother said that
complainant "hesitated a little."        At this point, before the
half-brother could finish his answer, the defense attorney jumped
in and objected, and the trial judge excused the jury and the
witness from the courtroom.
             The defense attorney argued that what complainant may
have told her half-brother did not fall within the prompt outcry
exception to the hearsay rule because the most recent alleged
incident of abuse had taken place 14 months before the backyard
conversation.    The prosecutor responded that the testimony went
to "the state of mind of the witness [and] how he reacted to [the
disclosure], what he did when he did it," not to prove the truth

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of the matter.
           The trial judge agreed with the People that the half-
brother's testimony was not being elicited for its truth, and
offered to give a limiting instruction to inform the jury that
the testimony was only being introduced "for the fact that upon
hearing it he then did something."     The judge added that he
thought he had already heard what that something was -- i.e, that
the half-brother "reported [complainant's disclosure] to his
mother."   The defense attorney protested that
           "the fact that the backyard smelled like penis . . .
           [t]hat's not what I wanted to be heard on.
           [Complainant's half-brother] is going on to discuss any
           further conversation that he had with [complainant]
           that she was -- you know, she was hesitant. She was --
           God only knows what. If he wants to describe
           observations, that's one thing. But the content of her
           communication with him is inadmissible hearsay."
           The defense attorney asked the trial judge not to
instruct the jury as to why the testimony was being offered
because there was no reason to "highlight the issue."    The judge
replied that his proposed instruction was
           "not about highlighting any issues; it's about giving
           [the jury] an instruction that the question is
           permissible, but not for their consideration as to
           whether, in fact, [the backyard] did smell like it back
           there, but, rather, the anticipatory question as to
           after [the complainant] having said that[,] what he
           did."
After the jury returned to the courtroom, the trial judge issued
such an instruction.
           Complainant's half-brother then related, over repeated
objections, further conversation in the backyard with

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complainant, and later with their mother; to wit, that when he
asked complainant "how she knew what it smelled like," she told
him that "she sucked a penis"; that he badgered her to tell him
whom she had done this with, and complainant finally divulged "My
dad"; that when he then questioned whether complainant was
"kidding" or "joking," she replied that she was not; that he
"told [complainant] to tell [their] mom, but she wouldn't"; and
that he finally repeated complainant's comments to their mother.
            The prosecutor then called complainant's mother.    She
testified that she was in the kitchen of her home on August 3,
2010 when her son, followed by complainant, appeared and
announced that "[complainant] needed to tell [her] something";
and that complainant stood with "her fist in her mouth" and "kept
shaking her head . . . no, but with her hand in her mouth," as
though she might have "hurt her hand," while her half-brother
kept urging her "to tell mom."    Eventually, complainant's half-
brother revealed that complainant had "said the backyard smelled
like penis."   Complainant's mother asked her daughter if she had
said this, and complainant "shook her head yes."
            When the prosecutor questioned complainant's mother
about what her son told her next, the defense attorney again
objected.   The trial judge overruled the objection and
complainant's mother answered that her son said that complainant
"had given [defendant] a blow job."      Over another objection, she
testified that complainant responded affirmatively when she asked


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if this was true.   Complainant's mother "asked her at least one
more time if it was all true.   And [complainant] said 'Yes.'"
According to complainant's mother, she never again mentioned the
matter to her daughter.
            After this revelation, complainant's mother telephoned
one of defendant's sisters, whom she "look[ed] up to . . . in
some way," and a friend, and communicated what she had just
learned.   She did not report complainant's allegation to the
authorities, but her friend did.   At about 2:00 a.m. the next
morning, defendant called her, explaining that "he couldn't
sleep."    He denied sexually abusing complainant, and suggested
that she "was just misconstruing the fact that she had caught him
[masturbating] a few other times."
            The People also called Elizabeth Opp, employed by
Monroe County as a child protective services caseworker, and
Nicole Thomson, a sex abuse crisis intervention specialist at the
Catholic Family Center in Rochester.     They both testified about
their interviews of complainant in August 2010, soon after the
sexual abuse allegations surfaced.      Opp and Thomson were not
asked to repeat statements that complainant made to them during
these interviews; rather, they described her demeanor when they
brought up the allegations of oral sex.
            According to Opp, when her conversation with
complainant turned to this topic, complainant tilted her head
down and became "very closed off, turning away . . . didn't want


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to talk, didn't want to engage anymore."   Thomson characterized
complainant as "very hesitant" when the subject of the sexual
abuse was broached, meaning "[s]he would lower her head.     She
would avoid eye contact.   She would push back in her chair.    She
would try to . . . make more space between herself and me."
Thomson further testified that complainant exhibited symptoms
consistent with post traumatic stress disorder.
          Thomson also met with defendant at his request.      She
"asked him if he could think of any reason why [complainant]
would have made this up or any reason why [she] would have said
these things that he said weren't true."   Defendant again
attributed complainant's allegation to a misunderstanding,
telling Thomson that "he sometimes masturbated in the shower when
the kids were at the house and that if he had been masturbating
in the bathroom and [complainant] came into the bathroom that he
may not have stopped when she asked a question."
          Dr. Danielle Thomas-Taylor, a pediatrician with
specialized training in evaluating children suspected of being
abused, explained that an examination of complainant yielded no
physical signs of sexual abuse, and why this was not unexpected
given the nature of the allegations and the lapse of time.
Stefen Perkowski, a social worker with expertise in child sexual
abuse, gave expert testimony about child sexual abuse
accommodation syndrome (CSAAS).   According to Perkowski, CSAAS is
generally accepted as valid within the community of child sexual


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abuse therapists, and accounts for why children delay reporting
and try to block out details of the abuse.   And finally, District
Attorney Investigator Robert Siersma testified that he had
watched an episode of the "Wizards of Waverly Place" titled
"Tutor, My Tutor" where characters donned green costumes; the
People introduced into evidence a business record from ABC to
show that this particular episode had aired in the summer of
2009.
          Defendant's only witness was his mother.   She testified
generally about the frequency of complainant's and her siblings'
weekend visits with defendant, and the activities that the family
engaged in.   Defendant's mother also testified that complainant
was a "[v]ery normal, typical grandchild," who "did tell lies
about some activities that she would be involved in," such as
whether she had completed assigned chores or homework.    At one
point, the defense attorney made an offer of proof that
defendant's mother had overheard complainant tell one of her
aunts on Father's Day weekend in 2011, two months before the
trial, that "she only tells what her mother tells she can say."
The defense attorney took the position that since complainant on
cross-examination had denied having this conversation, defendant
was allowed to "impeach [complainant's] credibility" with the
testimony of his mother, who was "physically present and heard
this child say these words."   The prosecutor objected on hearsay
grounds, and the trial judge ruled that the testimony was


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inadmissible hearsay.
          The jury convicted defendant as charged, and the trial
judge subsequently sentenced him to an indeterminate term of
imprisonment of from 16 years to life.   On his subsequent appeal,
defendant contended that he was denied a fair trial by the
prosecutor's references during opening argument to complainant's
prior consistent statements, and the testimony of five witnesses
(complainant, her half-brother, her mother, Opp and Thomson) who
improperly bolstered complainant's credibility by repeating the
prior consistent statements; and that his mother should have been
permitted to testify about the prior inconsistent statement that
she claimed to have overheard complainant make.
          The Appellate Division unanimously affirmed in a
decision issued in March 2013 (104 AD3d 1162 [4th Dept 2013]).
The court first noted that defendant's improper bosltering claims
were preserved only as to the testimony of complainant's half-
brother and mother, and in any event, Opp and Thomson merely
described complainant's demeanor when they brought up her
allegations of oral sexual abuse.   The Appellate Division then
concluded that the objected-to testimony, as well as
complainant's testimony, "did not constitute improper bolstering
inasmuch as the evidence was not admitted for its truth[, but
rather] to explain how the victim eventually disclosed the abuse
and how the investigation started" (id. at 1163 [internal
citations omitted]).    Further, since the prior-consistent-


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statement testimony from the relevant witnesses was proper,
defendant's attorney was not ineffective for failing to object to
it or to the prosecutor's opening statement.
           The court also rejected defendant's claim that the
trial judge improperly precluded his mother from testifying about
complainant's purported prior inconsistent statement.    The
Appellate Division observed that defendant failed to preserve any
claim that this ruling denied him his right to present a defense,
or that the testimony was admissible to establish that
complainant had a reason to fabricate her allegations.   And when
the People objected to the testimony on hearsay grounds, the
defense attorney failed to articulate any applicable exception to
the hearsay rule.   Finally, the Appellate Division declined to
review this claim as a matter of discretion in the interest of
justice, and rejected defendant's remaining claims as either
without merit or unpreserved.
           On August 16, 2013, a Judge of this Court granted
defendant permission to appeal (21 NY3d 1043 [2013]).    We now
affirm.
                                II.
                     Prior Consistent Statements
           As we observed in People v Smith (22 NY3d 462, 465
[2013]),
           "[t]he term 'bolstering' is used to describe the
           presentation in evidence of a prior consistent
           statement -- that is, a statement that a testifying
           witness has previously made out of court that is in

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             substance the same as his or her in-court testimony."
While such statements are generally precluded by the hearsay rule
absent an applicable exception, prior consistent statements are
notably less prejudicial to the opposing party than other forms
of hearsay, since by definition the maker of the statement has
said the same thing in court as out of it, and so credibility can
be tested through cross-examination (id. at 465-466).        As a
result, "in many cases, the admission of purely redundant hearsay
creates no greater evil than waste of time" (id. at 466).           Still,
there exists a risk that a prior consistent statement "may, by
simple force of repetition, give to a jury an exaggerated idea of
the probative force of a party's case" (id.).
             Here, defendant contends that the trial judge
countenanced improper bolstering when he permitted complainant's
half-brother and mother to testify that complainant revealed to
them on August 3, 2010 that she had performed oral sex on
defendant.    Of course, if complainant's disclosure was offered
for the truth of the matter asserted -- that the abuse actually
happened -- her own testimony fell outside any hearsay exception
(see People v McDaniel, 81 NY2d 10, 16 [1993]).     Defendant did
not object to complainant's testimony, though.    The hearsay that
he complains about was, therefore, already admitted.    Defendant's
real grievance is that other witnesses repeated the hearsay.          But
since defendant claimed that complainant had made up the
allegations (by trial, he had abandoned the fantastic notion that


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she might have misperceived his behavior), the circumstances of
her disclosure were relevant to her credibility.
          In the challenged testimony, complainant's half-brother
and mother did not recite any details of the sexual abuse to
which complainant later testified in court -- indeed, they could
not have done so because she supplied them with no information
beyond a bare allegation.   They did, however, describe
complainant's appearance: according to her half-brother,
complainant "hesitated" and, after telling him that she had
performed oral sex, was reluctant to speak further; according to
complainant's mother, when pushed by her half-brother to "tell
mom what you just told me," complainant stood mute with her fist
in her mouth, causing her mother to think at first that she had
injured her hand.   Finally, the witnesses explained what actions
complainant's disclosure prompted them to take: the half-brother
pressed complainant to repeat the allegation to their mother,
and, when she was unwilling, told their mother himself;
complainant's mother immediately shared the allegation with a
trusted sister of defendant's and a friend, which led to the
investigation resulting in the charge against defendant.
          New York courts have routinely recognized that
"nonspecific testimony about [a] child-victim's reports of sexual
abuse [do] not constitute improper bolstering [because] offered
for the relevant, nonhearsay purpose of explaining the
investigative process and completing the narrative of events


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                               - 15 -                       No. 166

leading to the defendant's arrest" (People v Rosario, 100 AD3d
660, 661 [2d Dept 2012]; see also People v Gregory, 78 AD3d 1246,
1246 [3d Dept 2010] [a police officer's testimony about the
victim's comments did not "improperly bolster[] the victim's
version of events [when] admitted not for its truth but for the
narrow purpose of explaining an officer's actions and the
sequence of events in an investigation, and the testimony is
accompanied by an appropriate limiting instruction"]).   Here, the
objected-to testimony fulfilled these legitimate nonhearsay
purposes.
            At trial, defendant argued that complainant was lying
because otherwise she would have reported his alleged sexual
misconduct right away, and he proposed a host of reasons why
complainant (and/or her mother) might wrongfully accuse him of
sexual abuse.   As a result, the challenged testimony was
necessary -- not to show that defendant made complainant "suck
his penis," but to depict for the jury the circumstances
attendant to the disclosure that triggered the investigation.
This evidence was relevant to the jury's assessment of
complainant's alleged motive to lie.    As already noted, the
witnesses did not recite prejudicial details of the alleged
abuse; they merely stated that complainant claimed that she had
been made to engage in oral sex with defendant.
            My concurring colleague expresses puzzlement that we
sanction the admission into evidence of complainant's prior


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consistent statements here since we did not do so in People v
Rosario (17 NY3d 501 [2011]) and its companion case, People v
Parada, where, in his view, the "facts are substantially
identical, in relevant ways" to those in this case (concurring op
at 1).   But in both cases, prior consistent statements were
improperly introduced into evidence in the People's direct case
as prompt outcry exceptions to the hearsay rule; the statements
at issue were not, and indeed could not have been, offered for
the nonhearsay purpose relied upon by the People here.
           The disputed prior consistent statement in Rosario was
contained in a note that the complainant wrote and gave to her
boyfriend about a year before she disclosed the sexual abuse to
two police officers with whom she had become friendly through her
participation in a police-sponsored program for teenagers.     The
note was thought to be destroyed or lost and was not presented to
the prosecutor until the eve of the boyfriend's testimony at
trial, a year after the complainant reported the abuse to the
police officers and two years after the note was alleged to have
been written.   In short, the People did not, and indeed, could
not, claim that the admission of the note would serve the
"nonhearsay purpose of explaining the investigative process and
completing the narrative of events leading to the defendant's
arrest" (Rosario, 100 AD3d at 661).    The police officers to whom
the complainant confided the sexual abuse testified at trial
about the facts and circumstances of her disclosures to them


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                               - 17 -                         No. 166

without objection.
          In Parada, the complainant disclosed the sexual abuse
to a young cousin at a time when the abuse was continuing, and to
an aunt, about two years after it ended.   She swore both to
secrecy, which they honored.   About a month or so after the
complainant's conversation with her aunt, though, she revealed
the abuse to her mother, who then contacted the police.   We
concluded that the disclosure to the cousin qualified as a prompt
outcry, and that the disclosure to the aunt did not, but that its
admission into evidence was harmless error.   At trial, the
complainant's mother narrated the facts and circumstances of her
daughter's disclosure of the abuse to her, just as complainant's
mother did here.   The defense attorney twice objected to this
testimony, without stating any basis.   The objections were
overruled, and the defendant did not argue to us that the
mother's testimony was improperly admitted hearsay.
                      Prior Inconsistent Statement
          Defendant's mother was prepared to testify that she
overheard complainant state that "she only tells what her mother
tells she can say."   Complainant allegedly made this comment
during a conversation with an aunt (defendant's sister) regarding
complainant's mother's potential pregnancy.   Given this context,
the statement does not suggest that complainant lies in general,
or fabricated sexual abuse accusations against defendant in
particular.   Any claim that the statement (which complainant


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denied making) tends to show that she is untruthful or uncommonly
biddable seriously distorts its meaning.   And this hearsay
evidence was plainly offered for its truth.   The point of the
proposed testimony was to convince the jury that complainant's
account of sexual abuse at defendant's hands was instigated by
his estranged wife.   In short, while defendant claimed to be
proffering this testimony for impeachment purposes, any possible
impeachment was solely on the collateral issue of what
complainant may have said about whether her mother was pregnant.
The case would be different if defendant had offered to prove
that complainant admitted that she said only what her mother told
her to say about defendant's alleged acts of sexual abuse.
          Accordingly, the order of the Appellate Division should
be affirmed.




                              - 18 -
People v Daniel Ludwig
No. 166




SMITH, J. (concurring):
          I find this a puzzling case, because its facts are
substantially identical, in relevant ways, to those in People v
Rosario (17 NY3d 501 [2011]) and Rosario's companion case, People
v Parada -- but the result here is the exact opposite.   Each of


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                               - 2 -                       No. 166

those previous cases, like this case, was a prosecution for
sexual abuse of a child victim.   In each, the victim was the
People's main witness.   In each case, the People offered in
evidence a prior consistent statement by the victim, in which she
had disclosed the abuse to a friend or relative.   In each of
those cases, as in this one, the out-of-court statement provided
compelling evidence that the child was telling the truth, and had
neither invented her story out of spite nor been coached or
pressured by anyone to tell it.
           In Rosario and Parada, the majority held the children's
statements inadmissible, rejecting the People's argument that
they were within the "prompt outcry" exception to the hearsay
rule.   I dissented in Rosario, and concurred in the result in
Parada (where the majority found the error to be harmless) (see
17 NY3d at 515-521).   I acknowledged that the prompt outcry
exception, as traditionally understood, did not fit the cases,
but I said that the exception should be broadened, arguing that
to keep the children's out-of-court statements from the jury was
unfair to the People and the victims, and risked a miscarriage of
justice.
           The only significant difference between this case and
the two earlier ones seems to be that the People here do not rely
on the prompt outcry exception to the hearsay rule, but assert
that no exception is necessary because the out-of-court statement
was not hearsay at all -- that it was offered not to prove its


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truth, but for a non-hearsay purpose.   The majority accepts this
argument, quoting an Appellate Division case (also called, by
coincidence, People v Rosario) that says such out-of-court
statements serve to explain "the investigative process" and to
complete "the narrative of events leading to the defendant's
arrest" (majority op at 14-15, quoting 100 AD3d 660, 661 [2012]).
The majority adds that the out-of-court statement was "relevant
to the jury's assessment of complainant's alleged motive to lie"
(majority op at 15).
          I am unable to follow the majority's logic.   Why did
"the investigative process" here need explaining?   What narrative
was there to complete?   The jury obviously knew that the victim
had disclosed the abuse some time before the trial -- what did it
care when and how she did so, unless the nature and circumstances
of the earlier disclosure persuaded the jury it was truthful?     We
have at times countenanced the admission of out-of-court
statements by alleged victims made to police officers, on the
theory that it was important for the jury to understand that the
police had a good reason for their actions (see People v Morris,
21 NY3d 588, 596 [2013]; People v Tosca, 98 NY2d 660 [2002]).
Thus, the out-of-court statements in those cases were held to
serve a purpose that did not depend on their truthfulness:
whether true or false, they motivated the police to do what they
did, and the motive of the police was something the jury might
need to know.   But the disclosure here was not made to the


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                               - 4 -                         No. 166

police: it was made to the victim's brother and mother.    The jury
had no reason to know their motives -- or, indeed, to know or
care what they did in response to the disclosure of abuse.
          As for the victim's "alleged motive to lie," how was
the jury supposed to use the out-of-court disclosure to assess it
without making any judgment about whether the disclosure was
truthful or not?   I would see the majority's point if defendant
had alleged a motive to lie that arose after the out-of-court
statement -- that would make the statement admissible under the
recent fabrication exception to the hearsay rule (People v
McClean, 69 NY2d 426, 428 [1987]).     But there is no claim of
recent fabrication in this case.
          Despite what I consider to be flaws in the majority's
reasoning, I welcome the rule that this case seems to establish:
that, at least in child sex abuse cases, testimony to the
victim's out-of-court disclosure of the abuse will be admissible
where it is relevant to the victim's credibility.    I think, for
the reasons given in my Rosario opinion, that such testimony
enhances the likelihood of a trial that is fair to both sides.
There is one important caveat, which I think is implicit in the
majority opinion: the rule is limited to prior statements of a
testifying witness.   Prior consistent statements are, as the
majority explains, a relatively benign form of hearsay (majority
op at 12-13).   It would be very different -- and, in my view,
would conflict unacceptably with the basic premise of the hearsay


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                              - 5 -                       No. 166

rule -- to admit on a similar theory an out-of-court statement by
a declarant not subject to cross-examination.




                              - 5 -
People v Ludwig
No. 166




LIPPMAN, Chief Judge (dissenting):
          The majority eviscerates the hearsay rule and allows
wholesale circumvention of the prompt outcry rule by
countenancing the admission of prior consistent statements that
provide a "narrative" or "investigative purpose" even where the
investigative purpose is not in issue.   As the concurrence makes
plain, these statements are obviously introduced to bolster the
complainant's credibility and establish the truth of the
accusation.   Yet I disagree with the concurrence in its proposed
expansion of the prompt outcry rule beyond all recognition.
Therefore, I dissent and would hold that the trial court’s
admission of the half-brother’s and mother’s testimony, during
which they repeated the complainant's out-of-court statements,
unfairly bolstered the complainant’s testimony and constituted
reversible error.
          The majority would have us believe that these
statements are not hearsay because they are part of a "narrative"
or set forth an "investigative purpose," and are not introduced
for their truth.    But the complainant's out-of-court statements
repeatedly communicated to the jury by the victim’s half-brother


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and mother were introduced to describe what abuse occurred.       The
mother’s and half-brother’s repetition of these statements would
have been useless to the People unless the jury accepted them as
true.   They constitute double hearsay that did not fall within
any exception to the rule.   The complainant had already described
the crime on the stand, and recounted how she reported the abuse,
without any substantial challenge by defense counsel.     Where
there was no basis to rehabilitate the complainant, the only
possible purpose of admitting the half-brother's and mother's
testimony was to reinforce the complainant's statements and make
her appear more reliable.    As we observed in People v McDaniel
(81 NY2d 10, 16 [1993]), improper bolstering is prohibited
because of the concern that untrustworthy testimony may appear
more reliable simply because it has been repeated.
           Out-of-court statements offered for the truth of the
matters they assert are hearsay and "may be received in evidence
only if they fall within one of the recognized exceptions to the
hearsay rule, and then only if the proponent demonstrates that
the evidence is reliable" (Nucci v Proper, 95 NY2d 597, 602
[2001]).   The hearsay rule guards against "traditional
testimonial infirmities" such as insincerity, ambiguity, and
faulty memory or perception (id. at 604), some of which are
implicated here.   In Nucci, proffered out-of-court statements
made several days after a medical malpractice incident were
reported by the plaintiff's relative who "may have had a strong


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                                  - 3 -                         No. 166

motive to shade her testimony" (id. at 603).        In that case, we
emphasized that "some of the statements involved double hearsay,"
a further ground to question their reliability (id.).
            The "investigative" or "narrative" rationale the
majority advances today swallows the hearsay rule.        Any statement
that explains a narrative tangentially related to a crime could
be admitted into evidence pursuant to the majority’s reasoning.
Without confining the exception to a narrow set of circumstances,
such as sexual abuse cases where the investigation is in issue,
the majority countenances the wholesale admission of hearsay.
Indeed, a narrative is defined as "a story," "an account of a
series of events, facts, etc., given in order and with the
establishing of connections between them" (Oxford English
Dictionary [3d ed 2003]), and "a[n] account of events,
experiences, or the like, whether true or fictitious.”1       Such
broad opportunity for the admission of hearsay creates a danger
of false and fabricated accusations spread amongst family and
friends who would then enhance the complainant's reliability.
            Moreover, in the few cases where the investigative
purpose rule has been applied, that purpose was in issue and the
court provided a proper limiting instruction to the jury
prescribing the use of the statement for a narrow purpose and not
for its truth.     For example, as the majority points out, in
People v Gregory (78 AD3d 1246, 1246 [3d Dept 2011], lv denied 16

     1
         Webster's Unabridged Dictionary [2d ed 1998]).

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                               - 4 -                         No. 166

NY3d 831 [2011]), a police officer's testimony about the victim's
comments explained the officer's actions and the sequence of
events in an investigation. Accompanying the testimony was an
appropriate limiting instruction prohibiting the jury from
accepting the statement for its truth.   Here, the danger of the
hearsay was missed entirely and the limiting instruction was
plainly inadequate; the jury was only told that the statements
were not to be used as proof that the backyard smelled, and there
was no instruction barring the jury’s use of the remaining
statements to prove that the abuse actually occurred.
          Extending the “prompt outcry” rule to these
circumstances, as suggested by the concurrence, is just another
recipe for the admission of false and fabricated accusations.
Any disclosure made by the victim about a crime before the crime
was reported to authorities would, under this formulation, be
admissible.   Currently, the prompt outcry rule “permits evidence
that a timely complaint was made” (People v Rosario, 17 NY3d 501,
511 [2011] [internal quotation marks and citation omitted]).      The
reporting must occur shortly after the crime (see People v
McDaniel, 81 NY2d at 17 [victim reported the abuse the morning
after it occurred]; Rosario, 17 NY3d at 513 [victim's statement
inadmissible where, as long as five months elapsed between the
abuse and the report]).   Further, only the fact of a complaint,
not its accompanying details, may be elicited (see McDaniel, 81
NY2d at 17; People v Rice, 75 NY2d 929, 932 [1990]).    We have


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                                 - 5 -                           No. 166

never before held that the prompt outcry rule applies to reports
this far removed from the crime -- over a year after the abuse --
and containing such graphic description of the crime.
            The erroneous admission of the half-brother's and
mother's statements here severely prejudiced defendant because,
apart from the complainant, there were no witnesses to the crime.
Without other corroborating evidence, the repeated communication
of the complainant's out-of-court statements constitutes
reversible error (see McDaniel, 81 NY2d at 20).
            For the reasons stated above, I dissent and would
reverse and remand for a new trial.
*   *   *    *   *   *   *   *    *      *   *   *   *   *   *    *   *
Order affirmed. Opinion by Judge Read. Judges Graffeo, Pigott
and Abdus-Salaam concur. Judge Smith concurs in result in an
opinion. Chief Judge Lippman dissents in an opinion in which
Judge Rivera concurs.

Decided October 23, 2014




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