By Daniel Wiessner
ALBANY, N.Y., Jan 17 (Reuters) - A divided appeals court has
upheld an Albany man's rape conviction, finding that the trial
judge properly denied the man access to all but a few dozen
pages of the victim's medical records.
In a 3-2 decision released Thursday, the Appellate Division,
Third Department, found that Terence McCray, 42, was entitled to
only 28 out of thousands of pages of medical documents. The
unnamed victim had a long history of mental illness and
hospitalization, the court said.
McCray had argued that his Sixth Amendment confrontation
rights were violated because he lacked access to the records
which, the court said, revealed the victim had issues with
memory loss and may have falsely accused her father of sexually
"We have reviewed the victim's voluminous mental health
records and conclude that the court provided an appropriate
sample of documents that covers all of the victim's relevant and
material mental health issues," Justice Edward Spain wrote for
According to the Third Department, McCray and the victim met
at an Albany bus stop in 2009. A few weeks later, McCray invited
her out and they ended up at an abandoned house in downtown
Albany, where, according to the 18-year-old victim, McCray raped
and beat her. McCray claimed the sex was consensual and that
afterward the victim tried to steal his pants, so he tackled her
and her face hit the floor, the court said.
McCray was charged with first-degree rape. During trial, his
attorney requested access to the victim's medical records.
Albany County Judge Thomas Breslin reviewed the records and
turned over 28 pages to McCray.
He used the documents -- which revealed that the victim had
been hospitalized more than 10 times and diagnosed with
epilepsy, bipolar disorder and post-traumatic stress disorder --
to argue that the victim's testimony was not credible. In 2010,
he was found guilty of first-degree rape and sentenced to 22
years in prison.
The Third Department on Thursday affirmed. The majority
panel also included Justices Leslie Stein and Elizabeth Garry.
In dissent, Justice William McCarthy said that McCray was
entitled to at least 34 additional pages of medical documents,
which showed that the victim sometimes experienced short-term
memory loss and had a number of episodes in which she ended up
in places like the middle of a busy highway and could not
remember how she got there.
The records also showed that when she was 13, the victim
accused her father of sexual abuse, but those allegations were
refuted by the victim's mother and never substantiated.
"The undisclosed records all raise issues that would affect
the victim's credibility or her ability to recall events, and
some of the records would be extremely damaging to the People's
case," wrote McCarthy, who was joined by Justice Thomas Mercure.
McCray's attorney, Paul Connolly, said he plans to seek
permission to appeal the ruling.
"In this kind of case, which hinges so much on credibility,
it is critical that we be permitted to review any records that
might lead to admissible evidence," he said.
Albany County Assistant District Attorney Steven Sharp, who
handled the appeal, said on Thursday that the majority had
properly blocked McCray from engaging in a "fishing expedition."
The case is the People v. Terence McCray, New York State
Supreme Court, Appellate Division, Third Department No. 103682.
For the prosecution: Albany County Assistant District
Attorney Steven Sharp.
For McCray: Paul Connolly.
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