People v. Gagnon — 75 N.Y.2d 736

Majority

p. 736

The People of the State of New York, Respondent, v John H. Gagnon, Appellant.

Argued November 17, 1989;

decided December 14, 1989

p. 737

APPEARANCES OF COUNSEL

Thomas J. Snider for appellant.

Charles A. Gardner, District Attorney (Jane M. Getman of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The proposed evidence of prior sexual contact between the complaining witness and her uncle was offered by the defense solely on the theory that it might be admissible to explain testimony of an examining physician that the 11-year-old complainant showed physical signs of sexual abuse. The prosecutor agreed that should the People present such medical testimony, the door might be opened for the proposed evidence in rebuttal. However, defendant could not himself elicit the medical testimony and then argue that he was entitled to present evidence of the victim’s prior sexual conduct to refute the very evidence he had just put before the jury.

p. 738

Defendant’s remaining contentions are without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.