dissent">Hopkins, J. P. (dissenting).

I concur in the dissenting opinion of Mr. Justice Martuscello and add only the following:

1. I am persuaded by the trial record that the material in the hospital records reflecting the psychiatric history of the complainant and the issue of its effect on her testimony were adequately presented to the jury. First, the complainant was a patient in the South Oaks Hospital for about six weeks nearly three years before the occurrence of the incident out of which the charges against the defendants arose. Thus, whatever force the information in the hospital records may have had concerning the then mental condition of the complainant was attenuated by the passage of time in its relevance to her current mental condition.

Second, the admissibility of the hospital records per se is not clear. Without doubt, a defendant may introduce hospital records as evidence of his insanity (People v Kohlmeyer, 284 NY 366), and, to an extent, hospital records may be considered as evidence of sanity when introduced against a defendant (People v Samuels, 302 NY 163, 170-172). But when hospital records are offered to test the credibility of a witness against a defendant, leaving aside the question of privilege, the use of the hospital records should be restricted to cross-examination (People v Bartholomew, 73 Misc 2d 541, affd 56 AD2d 633). The hospital records were available to the defense, and the complainant was, in my view, fairly confronted by the statements contained in those records. The area of cross-examination is, of course, within the discretion of the Trial Judge, and the trial record does not show that this discretion was not properly exercised (cf. People v Tice, 131 NY 651).

2. The defendants have also raised the constitutionality of CPL 60.42, calling our attention to State v Jalo (27 Ore App 845), which holds unconstitutional an Oregon statute (Ore Rev Stat, § 163.475, subd [3]), providing that evidence of previous sexual conduct of a complainant may not be admitted into evidence. But I do not think that CPL 60.42 is comparable to the Oregon statute. As it appears in the opinion of the court, the Oregon statute completely bars any such evidence. Under *588the New York statute the evidence of a victim’s sexual conduct may be admissible under certain conditions, or when the trial court so determines after an in camera hearing—a procedure followed here. That, in my opinion, is a significant difference which strongly supports the constitutionality of CPL 60.42.

As Judge Cardozo has stated in an oft-cited passage, the traditional rules of evidence permitted evidence on behalf of a defendant prosecuted for rape that the complainant’s reputation for chastity was bad, but did not permit proof of specific acts of unchastity (Cardozo, Nature of Judicial Process, pp 156-157; cf. 3A Wigmore, Evidence [Chadbourn rev], § 924a). The traditional rules have been heavily criticized (see, e.g., Note, The Victim in a Forcible Rape Case: A Feminist View, 11 Am Crim L Rev [ABA], 335; Bohmer, Judicial Attitudes Toward Rape Victims, 57 Judicature 303; Note, Limitations on Right to Introduce Evidence Pertaining to Prior Sexual History of the Complaining Witness in Cases of Forcible Rape: Reflection of Reality or Denial of Due Process, 3 Hofstra L Rev 403; Comment, Rape and Rape Laws: Sexism in Society and Law, 61 Calif L Rev 919; Comment, The Rape Victim: A Victim of Society and Law, 11 Willamette LJ 36). CPL 60.42 was doubtless enacted to meet that criticism.

The claim of unconstitutionality rests on the right of the defendant in a criminal prosecution to confront his accusers (Davis v Alaska, 415 US 308). The question essentially is whether the defendant has been so deprived of the right of cross-examination that his defense cannot be adequately presented. Justice Harlan considered that the defendant’s rights were more properly based on due process—whether he had received a fair trial (see California v Green, 399 US 149, 174; Dutton v Evans, 400 US 74, 94-100; cf. Dixon v United States, 287 A2d 89 [DC Ct of App], cert den 407 US 926). Whether cross-examination is unduly narrowed under due process or the right of confrontation seems immaterial in deciding the ultimate question—whether the defense was prevented from presenting relevant facts and circumstances favorable to the defendant at the trial. In Davis (supra),for example, the Alaskan statute conferring confidentiality on juvenile delinquent status stopped cross-examination into the prosecution’s witness’ bias or motive; in Chambers v Mississippi (410 US 284), a State evidentiary rule prohibited a party from impeaching his own witness. In both instances the State statute *589and rule were held to impede the exercise of the defendant’s right of cross-examination.

CPL 60.42 provides, as noted before, for no such iron prohibition of cross-examination. The sexual conduct of a complainant may have more or less probative force, depending on the circumstances. Clearly, evidence of previous sexual intimacy with the defendant has large probative effect; evidence of sexual encounters, remote in time, with other persons has little or no probative effect. The right of the defendant to make an offer of proof away from the jury before the Trial Judge in camera allows for a discerning evaluation of the probative force of the evidence proffered by the defendant, and thus, preserves the constitutionality of the New York statute (see, for analysis, Rudstein, Rape Shield Laws: Some Constitutional Problems, 18 Wm & Mary L Rev 1).

3. Finally, I must note that the jury, in acquitting the defendants of rape and sodomy but determining that they were guilty of sexual abuse in the first degree, used a discriminating judgment. It followed the physical proof indicating no evidence of rape or sodomy, but indicating severe injuries reflecting sexual abuse. On the whole, I am of the opinion that the defendants had a fair trial.

Margett, J., concurs with O’Connor, J.; Rabin, J., concurs in the result, with an opinion; Martuscello, J., and Hopkins, J. P., dissent and vote to affirm the judgments, with separate opinions, each of them concurring in the opinion of the other.

Two judgments of the Supreme Court, Queens County, rendered December 9, 1975 (one as to defendant Mandel and one as to defendant De Vito) and judgment of the same court, rendered January 6, 1976 (as to defendant Buckley), reversed, on the law, and new trial ordered. The findings of fact are affirmed.

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