This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 43
The People &c.,
            Respondent,
        v.
Boris Shaulov,
            Appellant.




          Stuart D. Rubin, for appellant.
          Amy Appelbaum, for respondent.




STEIN, J.:
          On this appeal, defendant Boris Shaulov argues that he
was deprived of the effective assistance of counsel at trial and
that the trial court abused its discretion by refusing to declare

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a mistrial or to strike the surprise prompt outcry testimony
elicited by the People in disregard of the prosecutor's pre-trial
representation that no such testimony would be offered.   We agree
with defendant's latter contention, and hold that Supreme Court
erred by failing to order a mistrial or to strike the testimony.
Accordingly, we reverse the Appellate Division order.
          Defendant was charged with multiple counts of statutory
and non-consensual rape and other sex crimes, for allegedly
engaging in sexual activity with the 16-year-old complainant when
he was 23 years old.   Complainant testified that, on the day of
the alleged sexual assault, she and defendant -- who she knew
through her ex-boyfriend -- went to an apartment in Brooklyn
sometime between 8:00 p.m. and 9:00 p.m.   While they were
watching a movie, defendant began to kiss and grope her and,
despite her protests and attempts to resist, allegedly raped her
twice.   Based on complainant's testimony and cell phone records,
the People claimed the alleged rapes occurred between 9:21 p.m.
and 10:57 p.m.
          At a pre-trial hearing, the People explicitly
represented to the court and defense counsel that there would be
no prompt outcry testimony, as complainant had not disclosed the
sexual assault to anyone until at least six months after it
allegedly happened.    In response to the court's inquiry, defense
counsel stated that "the People have said that there's no prompt
outcry, so I think that takes care of that issue."   The court


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ruled that the People could present expert testimony about rape
trauma syndrome if defendant attempted to impeach complainant
based on her delayed disclosure.
          In his opening statement to the jury, defense counsel
-- relying on the People's earlier representation -- stated that
          "[t]he complaining witness is going to tell
          you that she was on the phone that night more
          than once -- her mother, her friends,
          different people. She was on the phone, had
          access to her phone, but she didn't call 911,
          she didn't tell any of the people she was on
          the phone with . . . You're going to hear
          about a long delay in her telling anybody
          about these accusations."
However, shortly thereafter, complainant testified on direct
examination that she called a friend on her way home from the
apartment that night, and "told [her friend] what
happened . . . [but] didn't tell her the whole story" and "didn't
tell her [friend] that [she] didn't want [it] to happen."   The
People purposefully elicited this testimony and "expected" the
complainant to testify that she told her friend she had "engaged
in sexual intercourse" with defendant.
          Defense counsel objected and sought a mistrial or,
alternatively, a ruling striking that portion of complainant's
testimony regarding the alleged conversation with her friend on
the night of the alleged sexual assault.   Defense counsel argued
that such testimony was prompt outcry evidence, which the People
had represented would not be introduced at trial.   According to
defense counsel, complainant's testimony "totally change[d] [his]


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trial strategy" as "it would have changed voir dire, it would
have changed [his] opening [statement]."    The People
characterized the testimony as a partial disclosure, claimed that
it "c[a]me to . . . light at the last minute," and argued that it
did not prejudice defendant.
            The court concluded that the testimony described a
prompt outcry,1 but denied defendant's request for a mistrial and
let the testimony stand, concluding that it was not an "unfair
surprise that unduly prejudice[d] . . . defendant."      The court
reasoned that the testimony was not overly prejudicial because
the jury could find that complainant was incredible.
            When the trial resumed, complainant testified that she
fully disclosed the sexual assault to her brother-in-law and two
administrators from her school some six months after it allegedly
occurred.    The People then presented an expert witness, who
explained the characteristics of rape trauma syndrome to the
jury.    More specifically, the expert testified that delayed
disclosure was a common response to sexual assault, as was
disclosure to a trusted adult outside the nuclear family.      The
expert further explained that sex crime victims often make
"partial disclosure[s]" by minimizing or omitting the details of
a sexual assault to "test[] the waters" before fully disclosing
the events.    The People also introduced cell phone records, which


     1
       On appeal, neither party disputes that the testimony did,
in fact, amount to prompt outcry evidence.

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confirmed that complainant spoke with her friend shortly after
11:00 p.m. on the evening of the alleged assault, consistent with
complainant's testimony that she called the friend on her way
home from the apartment.
           Defense counsel attempted to discredit complainant,
suggesting that she fabricated the allegations of rape after a
dispute with defendant regarding her relationship with his
cousin.   Defense counsel focused on complainant's delayed
disclosure, and impeached complainant with her grand jury
testimony that she did not tell anyone about the alleged rapes
that night.   In addition, counsel introduced into evidence
probation records tending to establish that probation officers
conducted a home visit at defendant's apartment during the time
the People alleged that the rapes had occurred.
           After the close of proof and summations, the jury found
defendant guilty of two counts of rape in the third degree (see
Penal Law § 130.25 [2]), criminal sexual act in the third degree
(see Penal Law § 130.40 [2]), sexual abuse in the third degree
(see Penal Law § 130.55), and endangering the welfare of a child
(see Penal Law § 260.10 [1]).   However, the jury acquitted
defendant of the remaining crimes charged, which were based on a
theory of lack of consent by reason other than age.
           The Appellate Division affirmed, holding, in relevant
part, that the trial court did not abuse its discretion by
denying defendant's motion for a mistrial based on complainant's


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prompt outcry testimony (107 AD3d 829 [2d Dept 2013]).   A Judge
of this Court granted defendant leave to appeal (22 NY3d 1141
[2014]), and we now reverse.
          Based on this record, the trial court abused its
discretion when it denied defense counsel's motion for a mistrial
or to strike a portion of complainant's testimony.   Undisputedly,
complainant's testimony that she told her friend "what happened"
conveyed to the jury that she had engaged in sexual intercourse
with defendant that evening.   Although this testimony was
relevant, we have observed that relevancy, alone, does not render
evidence admissible because "'it may be rejected if its probative
value is outweighed by the danger that its admission
would . . . unfairly surprise a party[] or create substantial
danger of undue prejudice to one of the parties'" (People v
Davis, 43 NY2d 17, 27 [1977], cert denied 435 US 998 [1978],
quoting Richardson, Evidence [Prince--10th ed.], § 147, p. 117;
see People v Cortez, 22 NY3d 1061, 1079 [2014] [Abdus-Salaam, J.
concurring], cert denied 135 S Ct 146 [2014]).
          Relying on the People's pre-trial representation,
defense counsel shaped his trial strategy -- from voir dire to
his opening statement -- based on his founded belief that
complainant did not disclose the alleged rapes until months after
they occurred.   Complainant's testimony that she disclosed her
accusations against defendant -- even partially -- the same night
as the alleged assaults, took defendant by surprise because it


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was inconsistent with the People's earlier position and with
complainant's grand jury testimony.    Despite the People's
admission that they "expected" complainant to testify in such a
manner, the prosecutor inexplicably failed to convey this
information to defense counsel.   As a result, the surprise
testimony eviscerated counsel's credibility with the jury and
irreparably undermined his trial strategy.
          We are not persuaded that the resulting prejudice was
insubstantial.   Notably, complainant's cell phone records and the
expert's testimony corroborated and explained the nature and
timing of complainant's disclosure, thereby exacerbating the
prejudice to defendant.   The People claim that complainant's
disclosure was not prejudicial because she failed to tell her
friend that the alleged rapes were non-consensual.    This claim is
unavailing.   To the contrary, although unknown to the trial judge
at the time of his ruling, complainant's testimony later proved
especially prejudicial to defendant because the jury convicted
him of the age-based charges but acquitted him of the charges
based on lack of consent for reasons other than age.
          Under these circumstances -- where the People failed to
correct a prior representation to the court and defense counsel,
where counsel was deprived of the opportunity to timely and
meaningfully revise his trial strategy and emphasized the absence
of any prompt outcry evidence during his opening statement, and
where the error occurred early in the proceedings -- the trial


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court abused its discretion by denying defendant a remedy for the
unfair and prejudicial surprise (see Davis, 43 NY2d at 27; see
also People v Walker, 83 NY2d 455, 458 [1994]).        In light of our
conclusion, we need not reach defendant's ineffective assistance
of counsel claim.
            Accordingly, the Appellate Division order should be
reversed and a new trial ordered.
*   *   *     *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order reversed and a new trial ordered. Opinion by Judge Stein.
Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam
and Fahey concur.

Decided March 31, 2015




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