8 N.Y.3d 869 - People v. Jackson

¶1OPINION OF THE COURT

¶2Memorandum.

¶3The order of the Appellate Division should be affirmed.

¶4In a rape prosecution, evidence of a prior uncharged sexual assault against another and defendant’s simultaneously uttered out-of-court statement were admitted under Molineux to demonstrate defendant’s motive and future intent to rape the victim in this case. The witness testified, “[the defendant] told me that [the victim] was lucky I was there, because if I wasn’t there, it would be her.”

¶5Assuming that it was error to admit both the statement and the uncharged criminal conduct, the error was harmless.* Defendant was acquitted of three forcible rapes and convicted of three statutory rapes. “ ‘[T]he testimony of a single witness [can be enough] to support a conviction’ ” (People v Schulz, 4 NY3d 521, 530 [2005], quoting People v Arroyo, 54 NY2d 567, 578 [1982]). Although corroboration is not necessary in support of a rape prosecution, the underage victim’s testimony was bolstered by her prompt outcry the morning after the first rape occurred. Defendant had a key to the victim’s home, giving him full access to the apartment at night, while the victim’s mother was at work. While there was no physical evidence of rape, the *871medical testimony indicated that the results of the physical examination were not inconsistent with a rape having occurred two weeks earlier. To the extent that there were some inconsistencies in the victim’s story regarding the dates the rapes took place, an expert in child psychology testified that it was normal for an adolescent rape victim to remember the rape itself, rather than peripheral details such as dates. Thus, there was no significant probability the jury would have acquitted defendant if not for the error.

¶6The parties’ remaining contentions are without merit.

¶7 We note that defendant’s statement was sought to be admitted under Molineux to prove future intent. The accompanying rape simply provided a context for the statement and was used to complete the narrative. Defendant made no offer of another, neutral context for admission of the statement. Although both the concurring and dissenting opinions reason that defendant’s statement was an admission, as the People failed to offer the evidence under that theory, the merits are not before us for review (see People v Nieves, 67 NY2d 125, 131 [1986] [People could not rely upon a theory of a statement’s admission on appeal that the People did not advance at trial]).