ALBANY – A deeply divided appellate panel has upheld a rape conviction where the defendant was provided with only a sampling of the alleged victim’s mental health records and denied access to information that may have cast aspersions on the accuser and her accusations.

While the Appellate Division, Third Department, majority argued that the withheld records would not have been admissible, the dissent countered that the standard for disclosure is not admissibility but whether the suspect needed and was entitled to the information to prepare a defense.

By a 3-2 margin, the panel upheld the first-degree rape conviction and 22-year prison sentence imposed on a defendant who had turned down a misdemeanor/time-served plea bargain.

People v. McCray, 103682, turned partially on the Rape Shield Law and comes on the heels of a 5-2 Court of Appeals ruling in which the court upheld a conviction where the defendant was severely restricted in questioning the victim about her sexual habits.

The Court of Appeals case, People v. Halter, 2012 NY Slip Op 07052, was decided in October (NYLJ, Oct. 24), just a few days after the McCray case was argued at the Third Department.

Records show that Terence McCray, 40, had what began as a consensual relationship with a mentally troubled 18-year-old girl and ended with an allegation of first-degree rape. After partying and fondling, the couple went to an abandoned house in Albany where McCray says they engaged in consensual sex and the victim claims she was raped.

When the victim notified police, she had a torn shirt and bruised face, which she said resulted from a forcible rape; the defendant said they scuffled after having consensual sex because the teen suddenly demanded money and tried to flee from the abandoned building with his pants.

At trial, the prosecution disclosed that the victim had a history of mental illness. But then-Albany County Judge Thomas Breslin allowed the defense access to only a small portion of the thousands of pages of documents in the accuser’s mental health file. Among the documents that were not disclosed were records “unearthed” by the Third Department dissenters suggesting the complainant has short-term memory loss, cannot recall events after having a temper tantrum, tends to forget good experiences with an individual if they are succeeded by a negative experience and may have falsely accused her father of sexual abuse, according to the decision.

Writing for the majority, Justice Edward Spain (See Profile) said Breslin “properly balanced defendant’s 6th Amendment right to cross-examine an adverse witness and his right to any exculpatory evidence against the countervailing public interest in keeping certain matters confidential.”

Spain noted that the defense was provided with records of the victim’s history of hallucinations, preoccupation with sex, poor judgment and violent outbursts.

“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,” Spain wrote in an opinion joined by Justices Leslie Stein (See Profile) and Elizabeth Garry (See Profile).

Spain said that even if Breslin had provided the full record to the defense, information on the alleged false allegation would be barred under the Rape Shield Law. Additionally, the majority said Breslin properly barred the defense, under the Rape Shield Law, from inquiring about the victim’s “hypersexual” tendencies, an apparent off-shoot of her bipolar disorder.

“All references to the victim’s ‘hypersexuality’ in her medical history are to her wholly voluntary inappropriate, promiscuous behavior—conduct intentionally designed to shock and draw attention—which is precisely the kind of evidence the Rape Shield Law prohibits,” Spain wrote.

Justice William McCarthy (See Profile), in a seven-page dissent to the unusually lengthy 15-page majority opinion, strenuously argued that McCray was denied his Sixth Amendment rights and is entitled to a new trial. He was joined by Justice Thomas Mercure (See Profile).

McCarthy said the question is not whether certain documents would have been admissible, but whether Breslin, now a Supreme Court justice and candidate for an open seat on the Third Department bench, should have allowed the defendant to review records to determine “if admissible evidence could be gathered or proper questions could be formulated.”

McCarthy wrote, “Contrary to the majority’s assertion, criminal defendants are entitled to more than just a ‘sample’ of documents addressing a key witness’s mental health problems that could affect his or her testimony. In a case such as this, which the majority correctly characterizes as presenting ‘a classic he-said she-said credibility determination,’ defendant must be allowed to consider and explore all legitimate avenues of information relevant to his defense and the victim’s testimony and potential cross-examination.”

The dissent also argued that the defendant was entitled to information on the allegedly false allegation.

“Regardless of admissibility at trial, pursuant to controlling Court of Appeals case law, defendant was entitled to records that are relevant to a potentially false allegation of sexual abuse so that he could have investigated the claim prior to trial, consistent with the 6th Amendment right to cross-examine his accuser,” McCarthy wrote.

McCray was represented by Paul Connolly of Delmar.

While Connolly argued that his client should have had an opportunity to review the medical files, until the decision was handed down yesterday he knew little of the content of those records. He said he did not fully appreciate how important they could have been at trial and that he expects to seek leave to the Court of Appeals.

“From a legal point of view, it is an interesting case on the extent to which the right to confront witnesses should play second fiddle to the confidentiality rights of the complainant,” Connolly said. “I think the law is clear that the defense has to be able to review records, not just those directly admissible, but also those that may be inadmissible but could lead to admissible evidence. You can’t just look at whether it was admissible, but whether the defense could have used it in putting a defense together.”

Connolly said McCray turned down a time-served plea offer because he did not want to be labeled a sex offender or required to register under the Sex Offender Registration Act.

Assistant Albany County District Attorney Steven Sharp argued for the prosecution.

Sharp noted that he was as in the dark as Connolly with regard to the mental health records, which Breslin had reviewed in camera, and knew few details until yesterday. However, Sharp said that even knowing what he knows now about the records, the defendant was appropriately prosecuted.

“We obviously agree with the majority,” Sharp said. “I think the position that the defense posits would lead to a fishing expedition, which is exactly what the majority is concerned about.”

In Halter, the case the Court of Appeals decided just before McCray was argued on Oct. 18, the juxtaposition of Sixth Amendment and privacy rights also came into play. It involved a defendant who had been precluded from questioning his teenage daughter about her sexual conduct.

In that case, two judges dissented, including one, Judge Robert Smith, who was so concerned that an innocent man had been convicted that he urged the district attorney to re-review the case even though she was under no obligation to do so.