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Despite finding plenty of evidence to convict a man of molesting a 15-year-old girl, a New York appellate panel has toppled the conviction because the trial judge neglected to deliver cautionary instructions and the defendant’s counsel never requested them. The Appellate Division, 3rd Department, last week exercised its interest of justice jurisdiction to order a new trial for J.F. Montgomery, who is serving an 18-year sentence for first-degree sodomy and sexual abuse. In a unanimous opinion written by Justice Anthony T. Kane, the panel said the “lack of limiting instructions of any kind at any point requires reversal in the interest of justice, notwithstanding counsel’s failure to properly preserve this issue by requesting instructions or objecting to the court’s failure to so charge.” State v. J.F. Montgomery, 14930, arose from Tioga County and the allegations of a 15-year-old girl that Montgomery slapped her, threatened her with a knife, performed sodomy on her and commanded her to return the following day for additional sexual activities. The 3rd Department had no quibble with the proof — and in fact said the verdict was “not against the weight of the evidence” — but it said the defense counsel’s failure to request a limiting charge, and a trial judge’s failure to provide one, deprived the man of a fair trial. The issue leading to the reversal centered on the testimony of Montgomery’s girlfriend. Court records show that the victim had testified that while watching a movie with Montgomery and his girlfriend, the man began fondling her. When the girlfriend and victim objected, Montgomery ordered the girlfriend to leave the room, and proceeded to abuse the girl, according to trial testimony. Since the girlfriend gave police two contradictory statements, one of them incriminating Montgomery, and then testified that nothing had happened on the night in question, the prosecution was permitted to impeach her testimony with the prior written statement. Under People v. Carroll, 37 AD2d 1015 (1971), a prior inconsistent statement can be used only for impeachment purposes, and not as evidence of guilt. But the jury was never told about Carroll. “Defense counsel’s representation was deficient because he failed to object to the admission of this testimony or request any limiting instructions either when the testimony was first elicited, when the prosecutor quoted it in her summation or in the final charge to the jury,” Kane wrote. “Even though defense counsel failed to request cautionary instructions, County Court should have advised the jury of the limited purpose for which such testimony was being received, in order to minimize the prejudice to defendant.” The panel said in a case such as this, which rested on the credibility of the victim and defendant, it is plausible that such an error influenced the verdict. “This is especially true considering that, in summation, the prosecutor told the jury that the girlfriend’s written statement at issue was her most truthful version of what happened that night and quoted and summarized it, perhaps leading the jury to believe that it should consider this as evidence of guilt rather than only to determine the girlfriend’s credibility.” Justices D. Bruce Crew III, Carl J. Mugglin, Robert S. Rose and John A. Lahtinen joined in the opinion. Paul J. Connolly of Delmar, Albany County, argued for the defendant. Assistant District Attorney Irene C. Graven of Owego appeared for the prosecution. The case was tried before Tioga County Judge Vincent A. Sgueglia.

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