                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 5, 2017                   105112
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

SAMUEL SERRANO-GONZALEZ,
                    Appellant.
________________________________


Calendar Date:   November 21, 2016

Before:   McCarthy, J.P., Lynch, Rose, Clark and Aarons, JJ.

                             __________


      Michael P. Mansion, Latham, for appellant, and appellant
pro se.

      Karen Heggen, District Attorney, Ballston Spa (Kirstin T.
Foust of counsel), for respondent.

                             __________


McCarthy, J.P.

      Appeal from a judgment of the County Court of Saratoga
County (Scarano, J.), rendered May 17, 2012, upon a verdict
convicting defendant of the crimes of rape in the first degree
and sexual abuse in the first degree.

      Defendant was charged by indictment with one count of rape
in the first degree, one count of sexual abuse in the first
degree and one count of criminal obstruction of breathing or
blood circulation. The charges stemmed from allegations that
defendant threatened and choked the victim while forcibly raping
her all before he continued to threaten her at knife point until
she escaped and ran to a nearby police station. After a jury
trial, defendant was convicted of one count of rape in the first
                              -2-                105112

degree and one count of sexual abuse in the first degree. County
Court sentenced defendant, as a second felony offender, to
concurrent prison terms of 20 years followed by 25 years of
postrelease supervision for his conviction of rape in the first
degree and seven years followed by 15 years of postrelease
supervision for his conviction of sexual abuse in the first
degree. Defendant now appeals, and we affirm.

      County Court properly allowed the victim to testify
regarding her knowledge of defendant's HIV status. Defendant
contends that the value of the evidence referencing his HIV
status was more prejudicial than probative and that he otherwise
has a constitutionally protected privacy interest that was
violated by the introduction of such evidence. Defendant's HIV
status was directly at issue in regard to whether he and the
victim engaged in consensual intercourse. The victim testified
that she and defendant had previously had a consensual sexual
relationship. Thereafter, defendant was diagnosed with HIV. The
victim indicated that, as a result of defendant's diagnosis, she
and defendant discussed their relationship and agreed that it
would thereafter be "platonic." Thus, defendant's HIV status was
highly probative evidence as necessary background information
regarding the victim's choice to stop having sexual intercourse
with defendant. Moreover, County Court instructed the jury that
defendant's HIV status could not be considered as propensity or
disposition evidence in relationship to the charged crimes.
Considering the foregoing, County Court did not abuse its
discretion in permitting the victim's testimony on the issue (see
People v Pham, 118 AD3d 1159, 1161 [2014], lv denied 24 NY3d 1087
[2014]; People v Higgins, 12 AD3d 775, 778 [2004], lv denied 4
NY3d 764 [2005]).

      Further, having failed to raise to County Court the
contention that he had a constitutional privacy interest that
rendered such evidence inadmissible, defendant did not preserve
that contention for our review (see People v Nelson, 27 NY3d 361,
367-368 [2016], cert denied ___ US ___ [Oct. 3, 2016]). In any
event, as the victim, rather than a state actor, provided the
evidence at trial related to defendant's HIV status, defendant's
constitutional privacy rights could not have been impinged upon
(compare Doe v City of NY, 15 F 3d 264, 268 [2d Cir 1994]; see
                              -3-                105112

generally People v Mendoza, 211 AD2d 493, 493 [1995]).

      Next, County Court did not abuse its discretion in
preventing defendant from introducing evidence on a collateral
matter regarding the victim's statements in the aftermath of
defendant's HIV diagnosis. Defendant contends that the court
erred in denying his request to call one of his nurses to testify
that, after the HIV diagnosis and approximately two weeks before
the events leading to his convictions, the victim told the nurse
that she planned to "stay together" with defendant. The victim's
conversation with the nurse occurred well after the victim
learned of defendant's HIV diagnosis. Thus, the victim was not
under the stress of a startling event and, therefore, any
statement that she made was not an excited utterance (see People
v Hansen, 290 AD2d 47, 54 [2002], affd 99 NY2d 339 [2003]).
Moreover, inasmuch as the subject statement does not address the
victim's state of mind as to a future consensual sexual
relationship with defendant, the court did not abuse its
discretion in finding that the evidence was not admissible
pursuant to the state of mind exception to the rule against
hearsay (see generally People v Aska, 91 NY2d 979, 981 [1998]).
Finally, as the victim was not seeking any diagnosis or treatment
in having a discussion with defendant's nurse, the statement is
not admissible as relevant medical treatment or diagnosis (see
People v Thomas, 282 AD2d 827, 828 [2001], lv denied 96 NY2d 925
[2001]).

      Moreover, the evidence was not admissible as impeachment
evidence. "[A] party may not introduce extrinsic evidence on a
collateral matter solely to impeach credibility" (People v
Alvino, 71 NY2d 233, 247 [1987]). "The purpose of this rule is
judicial economy, to prevent needless multiplication of issues in
a case, and to insure that the jury is not confused with
irrelevant evidence" (id. at 248). "However, that general rule
is not applied where the issue to which the evidence relates is a
material one, that is, one that the jury must decide" (People v
Mink, 267 AD2d 501, 503 [1999] [citation omitted], lv denied, 94
NY2d 950 [2000]). Here, the victim testified to the fact that,
after defendant was diagnosed with HIV, she planned to continue
to live with him and did not intend to abandon him or cut off
their relationship. Nonetheless, on cross-examination, the
                              -4-                105112
victim denied having told the nurse that she intended to "stay
together" with defendant. Defendant sought to introduce the
nurse's testimony to show that the victim was "telling a lie."
Assuming for the sake of argument that the phrase "stay together"
could be construed as referring to a sexual relationship,
defendant's impeachment efforts related to proof regarding the
victim's mental state approximately two weeks before the events
underlying the convictions. The jury did not need to determine
the victim's mental state in the initial aftermath of defendant's
diagnosis. Accordingly, County Court did not abuse its
discretion in precluding defendant from attempting to impeach the
victim as to that collateral issue (see People v Olivares, 34
AD3d 602, 602 [2006], lv denied 9 NY3d 879 [2007]; People v
Richardson, 28 AD3d 1002, 1004 [2006], lv denied 7 NY3d 817
[2006]; People v Alexander, 16 AD3d 515, 515-516 [2005], lv
denied 5 NY3d 758 [2005]). In any event, any error in failing to
admit such evidence would be harmless. Defendant testified to
his recollection of the victim's statements to the nurse, and the
victim's testimony regarding the rape and abuse was otherwise
corroborated by medical1 and DNA evidence (see People v Maxam,
135 AD3d 1160, 1162 [2016], lv denied 27 NY3d 1135 [2016]).

      In addition, County Court properly allowed for the
redaction of portions of a DNA test of the victim's vulvar swab
referring to DNA of an additional donor not linked to defendant
and properly precluded defendant from calling a DNA expert to
testify regarding the additional donor evidence. Defendant
admitted, when arguing for the admission of the evidence, that he
wanted to use it to examine the victim as to her sexual history
with persons other than defendant. Introducing such evidence for
that purpose "[falls] squarely within the ambit of the Rape
Shield Law, which generally prohibits '[e]vidence of a victim's
sexual conduct' in a prosecution for a sex offense under Penal
Law article 130 (CPL 60.42)" (People v Halter, 19 NY3d 1046, 1049


    1
        Despite defendant's testimony that he engaged in
consensual unprotected sex with the victim, a nurse who examined
the victim explained that the victim had red marks on her neck,
bruising on her arms and a puncture wound on her thigh, all of
which corroborated the victim's testimony.
                              -5-                105112
[2012]). Accordingly, County Court properly precluded that
evidence (see People v Halter, 19 NY3d at 1049; People v
Mitchell, 10 AD3d 554, 555 [2004], lv denied 3 NY3d 759 [2004]).

      County Court properly granted the People's motion to redact
references to the victim's past instances of self-inflicted and
defendant-inflicted cutting in her medical records. A victim's
past psychiatric and medical history has been properly deemed
inadmissible in instances where the records are not "probative of
the victim's veracity or any tendency to falsely report sex
crimes" (People v Murphy, 188 AD2d 742, 744 [1992], lv denied 81
NY2d 890 [1993]; see People v Graham, 117 AD2d 832, 834 [1986],
lv denied 68 NY2d 770 [1986]). Here, the victim's medical
records contained notes indicating that defendant had previously
cut her forearm and that she had also previously cut her own
forearm. There is no evidence within the medical records
suggesting that these reports are false. Accordingly, as the
records themselves are not probative as to veracity or false
reports of sex crimes, the references to cutting were properly
redacted (see People v Murphy, 188 AD2d at 744; People v Graham,
117 AD2d at 834).

      Next, County Court did not abuse its discretion in its
Sandoval ruling. County Court granted the People's motion to
question defendant as to multiple misdemeanor and felony
convictions, many of which related to the possession of a
controlled substance. The court precluded the People from
mentioning the sentences or the underlying facts of the
convictions so long as defendant admitted to them, and the court
also gave limiting instructions that the convictions could not be
used as proof of the commission of the crimes at issue.
Considering the balance that the court struck as to the scope of
the inquiry and that the convictions implicated defendant's
willingness to place his own interests above that of society's,
the Sandoval ruling was proper (see People v Gangar, 79 AD3d
1262, 1263-1264 [2010], lv denied 16 NY3d 831 [2011]; People v
Peele, 73 AD3d 1219, 1220 [2010], lvs denied 15 NY3d 893, 894
[2010]).

      Finally, defendant's sentence does not establish that he
was punished for exercising his trial right and it is also not
                              -6-                  105112
harsh or excessive. "The fact that the sentence imposed is
longer than one rejected during plea negotiations does not
establish that defendant was punished for exercising his
constitutional right to trial" (People v Foulkes, 117 AD3d 1176,
1177 [2014] [citations omitted], lv denied 24 NY3d 1084 [2014];
see People v Sapienza, 91 AD3d 988, 989 [2012]). Further, given
the nature of the crime, defendant's criminal history and the
fact that the court gave less than the maximum allowable
sentence, we find no abuse of discretion or extraordinary
circumstances that would warrant a reduction in defendant's
sentence (see People v Peart, 141 AD3d 939, 942 [2016], lv denied
___ NY3d ___ [Nov. 4, 2016]; People v Thiel, 134 AD3d 1237, 1241
[2015], lv denied 27 NY3d 1156 [2016]). Defendant's remaining
contentions have been considered and are without merit.

     Lynch, Rose, Clark and Aarons, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
