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

30
KA 08-01991
PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RAYLAND L. HICKS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered February 28, 2008. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree,
aggravated sexual abuse in the second degree and aggravated criminal
contempt.

     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, two and four of the indictment.

      Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of burglary in the first degree (Penal Law §
140.30 [2]), aggravated sexual abuse in the second degree (§ 130.67
[1] [a]), and aggravated criminal contempt (§ 215.52 [1]).
Defendant’s contention that a mistrial should have been granted when
the victim’s testimony was bolstered is unpreserved for our review
inasmuch as defendant did not ask for a further curative instruction
after County Court sustained his objection to the admissibility of the
testimony, nor did he renew his motion for a mistrial (see CPL 470.05
[2]; see also People v Jones, 219 AD2d 736, 736, lv denied 86 NY2d
873). 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 reject defendant’s contention that the court abused its
discretion in denying his motion to file a late alibi notice with
respect to a certain defense witness (see CPL 250.20 [1]; People v
Owens, 26 AD3d 816, lv denied 7 NY3d 755, 760). We agree with
defendant, however, that the court erred in precluding the testimony
of that same defense witness concerning defendant’s presence and
activity at least one hour before the crimes occurred. The crimes
occurred at 11:45 P.M. on September 4, 2007. The victim knew
                                 -2-                            30
                                                         KA 08-01991

defendant from a previous relationship, and they had a child together.
According to defendant’s trial testimony, the victim telephoned him
earlier in the evening, demanding money for child support. Defendant
testified that he drove to the victim’s residence with the witness in
question at approximately 10:30 P.M. to deliver some money to the
victim and that, while in the residence, he observed another “dude”
there. Defendant further testified that, after remaining at the
residence for a few minutes, defendant then left.

     According to the victim’s trial testimony, however, she had not
seen defendant since August 2007 until the night of the crimes and did
not telephone him that night. The victim’s testimony made no mention
of any other person being present in her residence that evening, and
she indicated that she was napping on the couch at the time of and
prior to the crimes. Thus, the proposed testimony of defendant’s
witness would have directly contradicted the victim’s version of
events leading up to the crimes.

     We agree with defendant that the proposed testimony of the
defense witness in question did not constitute alibi testimony.
Indeed, an alibi defense is defined in CPL 250.20 (1) as “a trial
defense that at the time of the commission of the crime[s] charged
[defendant] was at some place or places other than the scene of the
crime” (emphasis added). Adhering to that statutory definition and
the limited time frame encompassed by its express language, the
proposed testimony of the defense witness “would not have accounted
for the defendant’s whereabouts during the crime[s] or placed him away
from the crime scene shortly thereafter,” and thus he was not in fact
offering alibi testimony (People v Bennett, 128 AD2d 540, 540, lv
denied 69 NY2d 1001; see People v Evans, 289 AD2d 417, lv denied 98
NY2d 637). We reject the People’s contention that the proposed
testimony would “implicate an alibi” and cause the jury to speculate
that defendant had an alibi defense. “[T]he fact that such
[testimony] may, in addition to its intended purpose, also be taken as
circumstantial alibi evidence does not require that alibi notice be
given” (People v Green, 70 AD3d 39, 44). Thus, we conclude that the
court’s preclusion of the testimony of the defense witness in question
was an abuse of discretion that violated defendant’s constitutional
right to call witnesses – “a right ‘recognized as essential to due
process’ ” (id. at 45, quoting Chambers v Mississippi, 410 US 284,
294). It cannot be said in light of the less than overwhelming
evidence of defendant’s guilt that there is “no reasonable possibility
that the error might have contributed to defendant’s conviction and
that it was thus harmless beyond a reasonable doubt” (People v
Crimmins, 36 NY2d 230, 237).

     In view of our determination to grant a new trial, there is no
need to consider defendant’s remaining contentions.



Entered:   April 27, 2012                       Frances E. Cafarell
                                                Clerk of the Court
