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Supreme Court of the State of New York
Appellate Division, First Judicial Department
Sallie Manzanet-Daniels, J.P. Judith J. Gische Cynthia S. Kern Angela M. Mazzarelli Ellen Gesmer, JJ. Appeal No. 15103 Ind. Nos. 2335/ 18 2673/ Case No. 2020 - 00590 THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
- against- HARVEY WEINSTEIN, Defendant-Appellant. Defendant appeals from a judgment of the Supreme Court, New York County (James M. Burke, J.), rendered March 11, 2020, convicting him, after a jury trial, of criminal sexual act in the first degree and rape in the third degree and sentencing him to consecutive terms of 20 years and 3 years, respectively. Aidala, Bertuna & Kamins, PC, New York (Barry Kamins, John Leventhal and Diana Fabi Samson of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Valerie Figueredo, Alice Wiseman and Eleanor J. Ostrow of counsel), for respondent.
MAZZARELLI, J.,
Defendant Harvey Weinstein, a famous and highly successful movie and television producer, was charged with one count of criminal sexual act in the first degree against Miriam Haley, and rape in the first degree and rape in the third degree against Jessica Mann. He was also charged with two counts of predatory sexual assault, based on his alleged assaults of Haley and Mann, two women who were trying to make a name for themselves in the entertainment industry. Shortly before trial, the People were granted permission to include defendant’s alleged rape of Annabella Sciorra, a well- known actor, in 1993, as an alternate predicate to each count of predatory sexual assault. As relevant here, the trial featured testimony from Haley, Mann, and Sciorra. In addition, three other women testified who were burgeoning actors. They alleged that they too were sexually assaulted by defendant. The People offered their testimony as Molineux evidence ( People v Molineux , 168 NY 264 [1901]). Molineux evidence relates to crimes or bad acts committed by a criminal defendant that are not part of the pending case, but which helps to explain the conduct for which the defendant is being tried. Here the evidence was offered by the People because of the multifaceted nature of defendant’s relationships with Haley and Mann. These relationships included episodes of consensual sex, some of which occurred after the alleged assaults, and behavior by complainants in the days and even years after the charged episodes, that to jurors could seem incongruent with what would be expected from a victim of a sex crime. The trial court agreed with the People that complainants’ behavior before and after the sexual encounters risked masking the fact that the alleged assaults were nonconsensual, and that the Molineux witnesses placed the incidents in a more accurate context.
defendant. In addition, the People called the actor Rosie Perez, a close friend of Sciorra’s, to corroborate the latter’s testimony about defendant’s alleged rape of her. The People also presented the testimony of Elizabeth Entin, a friend of Haley’s who discussed conversations with Haley immediately after defendant’s alleged assault of Haley. Defendant called Talita Maia, a friend of Mann’s, and Tommy Richards, another friend of Mann’s who was also a talent agent. They testified about, inter alia, Mann’s behavior immediately after the incident that formed the basis of the rape charges against defendant. Defendant was acquitted of the charge of first-degree rape against Mann and both counts of predatory sexual assault and convicted of third-degree rape against Mann and first-degree sexual act against Haley. On appeal, he maintains, inter alia, that the conviction for third-degree rape against Mann was based on insufficient evidence, and that that conviction, as well as the conviction for first-degree sexual act against Haley, were against the weight of the evidence. He argues that the complainants’ behavior both before and after the charged incidents, which included voluntary sex, and sending communications to him that were both flattering and affectionate, belie the People’s theory that the complainants did not consent to those sexual engagements. He further claims that the trial court unduly prejudiced him and prevented an acquittal by admitting the testimony of the three non-complainant women regarding sexual offenses committed against them by defendant. In addition, he argues that the court granted the People’s Sandoval application without regard to the fact that the sheer number of bad acts it allowed the People to use in cross-examination would preclude him from taking the stand in his own defense, for fear that those uncharged acts would, on their own, poison the jury against him. Defendant also contends that the trial was unfair because
the court permitted the People’s expert witness to opine on the complainants’ credibility, while severely curtailing his own experts’ testimony. In addition, defendant maintains that the court unfairly permitted one of the jurors to sit and participate in deliberations notwithstanding that she allegedly lied to get a spot on the jury and was biased against him because she had been a victim of sexual abuse, was intimately familiar with the dynamics between predatory men and their victims, and had a profit motive for serving. For the following reasons, we reject defendant’s arguments, and affirm the conviction in all respects. At the time of the acts which formed the basis of the charges, defendant was familiar with both Haley and Mann, who came to know him after he met them at industry events (Haley at a movie premiere in London in 2004, Mann at a party in Hollywood in 2013). He knew Sciorra because she had acted in a movie his company produced. The following is a brief recapitulation, derived from the women’s testimony at trial, of defendant’s relationships with each woman up to, including, and following the incidents that resulted in his conviction. In May 2006, Haley saw defendant at a party at the Cannes Film Festival, where she asked defendant if she could work on any productions his company was making in New York. Defendant told her to come see him at the Majestic Hotel in Cannes, where his company, the Weinstein Company (TWC), had an office. When she arrived, defendant commented on her legs, and asked her if she would massage him, or if he could massage her. She declined and left. After the festival, defendant’s company offered Haley a job as a production assistant on a TV show, Project Runway. Haley accepted the job, and when the season ended, she emailed defendant thanking him. In reply, he
and kissing her. When Haley got up from the sofa, defendant pulled her back towards him. When Haley tried to walk away, defendant used his body to move Haley, who weighed about 115 pounds (considerably less than defendant) to the bedroom, where he pushed her onto the bed. She tried to flee by kicking and pushing, but he pinned her down by her wrists and laid on top of her. Haley told defendant she did not want his advances and repeated “no” while he ignored her words of protest. Defendant held her down on the bed while “forc[ing]” his mouth on her vaginal area. She said she was having her period and was wearing a tampon. Defendant pulled out the tampon and resumed the oral contact. Haley was in shock and unsure what to do, especially because she thought defendant’s driver might be standing outside the apartment and could prevent her from leaving. She decided to “endure” it. Haley did not report the assault at the time because she had worked for Project Runway on a tourist visa and was concerned about the immigration consequences. She also took into consideration defendant’s “power, resources and connections.” Defendant was eventually charged with criminal sexual act in the first degree as a result of this incident. This was not the last time that Haley saw or interacted with defendant. In fact, Haley flew to Los Angeles the next day with a ticket purchased by TWC, and returned two weeks later. She did not see defendant when she was in Los Angeles, although he called her, sounding irritated, after she failed to appear for the movie premiere that was the ostensible purpose of his having purchased the plane ticket for her. After she returned to New York, defendant repeatedly asked her to meet him at the Tribeca Grand Hotel in Manhattan, and Haley agreed to do so two days after she arrived back in New York. On that day, she was escorted to defendant’s hotel room, where defendant immediately grabbed her arm and led her to the bed. Haley did not resist, and laid in
bed motionless while defendant called her names such as “bitch” and “whore,” and proceeded to have intercourse with her. Haley testified that she did not want to have sex with defendant that night and had not done anything to indicate that she did. Haley continued to stay in touch with defendant for over two years, meeting him once to pitch a television show, and sending him several emails, which, inter alia, thanked him for his help with her career, sent him her “love” or said that it had been “great” to see him. Mann met defendant in early 2013 at a party in Hollywood. Defendant expressed interest in Mann’s acting career, and told her he would like to follow up with her. She gave him her phone number. At some point after the party, defendant arranged to meet Mann at a bookstore in Los Angeles, where he bought her some books and told her that he wanted to integrate her into his team. She later met him and his assistant at a restaurant in Los Angeles, where they discussed her experience and she provided the names of her manager and agent. On a later day, at the Peninsula Hotel in Los Angeles, Mann met defendant for dinner, but he seemed to become irritated when other customers interrupted them to praise his work. To avoid further disturbances, Mann accepted defendant’s suggestion that they finish dinner in his room. After hotel staff brought the food to his room, defendant removed some of his clothing, went to the bedroom, and called out for Mann to join him there. She reluctantly did so and found him shirtless. He asked her to take off her shirt so he could give her a massage. She said she did not want one, but she did not want to offend him because of the possible influence he could have on her career, and agreed to massage his back. She spent about 5 or 10 minutes massaging his back with lotion that he had given her.
to “undo” the incident, decided to start a romantic relationship with defendant. For weeks after the incident, defendant and Mann had consensual oral sex. The next night, Mann went to defendant’s room, where he was with Postacchini, the Italian actor. Defendant said he wanted to have a “threesome” with the women. Mann felt uncomfortable and noticed that Postacchini, whose English was limited, seemed nervous. Defendant told them to undress in the bedroom. Postacchini took off her clothes, and Mann removed her top. Defendant told Mann to perform oral sex on Postacchini. Both women indicated that they had no experience with oral sex between women or threesomes. Mann testified that once she touched Postacchini’s breast, Mann “saw [her]self in” Postacchini, cried, and ran to the bathroom. Postacchini later found Mann in a fetal position on the bathroom floor. In March 2013, Mann traveled with her friend Tommy Richards, a talent agent, to New York. Mann and Richards shared a room at the Doubletree Hotel in midtown Manhattan. Richards asked to meet defendant, and, hoping that Richards would take her on as a client, she arranged breakfast at the hotel with herself, defendant, Richards and her friend Talita Maia. Defendant arrived at the hotel early, and when Mann went down to the lobby to meet him, she found him at the front desk, where he asked for a room using an alias. She asked him why he was getting a room, but he did not respond. Mann was nervous that, based on past experience, defendant intended to use the room to extract sexual favors from her as consideration for having agreed to meet Richards. Defendant pulled her aside and told her not to embarrass him. After receiving the key, defendant put his arm on Mann and led her to the room, although she told him she did not want to go. In the room, Mann told defendant they did not have time because her friend would be there soon. Mann tried twice to leave by opening the door to the room,
but each time defendant blocked her by putting his hand on the door above her head and slamming the door shut. Defendant angrily told her to undress, and when she did not comply, he grabbed her hand and used it to “force” her to undress, after which she finished undressing herself, since she felt she had no choice and was trapped. Once she was naked, defendant told her to lie down in bed. He entered the bathroom and returned to the bedroom naked. He got on top of Mann, who was lying on her back in bed and could not move under his weight. Defendant proceeded to have penetrative sex with Mann. For this incident defendant was charged with rape in the first and third degrees. Maia and Richards collectively testified on behalf of the defense that they noticed nothing amiss about Mann that morning and that she and defendant were friendly with each other. Richards testified that Mann told her she was going to spend an extra day in New York with defendant, instead of flying back to Los Angeles that day with Richards, as originally planned. After that incident Mann maintained her relationship with defendant, and sent him numerous emails that were friendly and flattering in nature. In February 2014, Mann went to meet defendant at his room in the Peninsula Hotel in Los Angeles. She decided that during that meeting she would tell defendant about her relationship with an actor she was dating. After defendant became aware of that relationship, defendant yelled, “[Y]ou owe me one more time[!],” dragged her to the bedroom, threw her onto the bed and told her to take off her clothes. She protested, but defendant lunged at her and removed her pants, scratching her legs in the process. She “froze,” struggled to keep her balance, and curled into a ball on the bed. After going into the bathroom, defendant grabbed Mann by her ankles, pulled her down the bed, pushed her legs apart, put his mouth on her vaginal area, and then got on top of her and inserted his penis into her
told her that he had people he could send to her father’s house to assault him after she complained to defendant about issues she was having with her father. The court also allowed the People to introduce the testimony of three of five different women who the People had identified as having alleged that defendant committed sexual offenses against them, Lauren Young, Dawn Dunning, and Tarale Wulff. A description of their testimony follows. In February 2013, Lauren Young, an aspiring actor, met defendant through another actor, who knew that Young was writing a script. A meeting among the three took place at the bar in the Montage Hotel in Los Angeles, where defendant encouraged Young to participate in the television show America’s Next Top Model and told her he would arrange for her to meet his assistant the next day. Defendant said he needed to get ready for an awards ceremony that evening, and asked Young and the other actor to continue the meeting in his hotel suite. Defendant entered the suite, followed by Young, who was led by defendant into a bathroom. Young’s friend closed the bathroom door behind Young, leaving Young alone with defendant in the bathroom. Defendant undressed, entered the shower, and turned on the water for a few seconds, while the shower door stayed open and blocked the bathroom door. Young felt “trapped” as defendant exited the shower and told Young they were going to “have a nice talk.” He dropped a towel he had been wearing, and she turned toward the sink to avoid seeing him naked. He unzipped and unbuttoned her dress, turned her toward him, pulled down her dress to her elbows, and pushed her against the sink. He grabbed her breast while using his other hand to masturbate. Throughout the incident, Young repeatedly said “no,” that she was “not interested,” and that she had a boyfriend. Defendant said: “[H]ow am I going to know if you can act[?]... This is what all actresses do to make it.”
He moved his hand toward her genital area, but she blocked his hand. While still holding her breast, he ejaculated onto the towel and then left, still naked. In 2004 or 2005, Dawn Dunning was working in a Manhattan club when the owner pointed out defendant to her. Dunning told defendant she was an actor, and he offered to help her. She gave him her phone number. Defendant’s assistant called her to arrange for all three of them to have lunch in Manhattan. After the lunch, Dunning and defendant continued meeting. She participated in a screen test in the office of Miramax, one of defendant’s companies, and she and her fiancé accepted several invitations from defendant to parties. In the Spring of 2004 or 2005, Dunning met defendant in a Soho hotel suite with other people, who were working on a movie. Defendant brought Dunning into the bedroom, where they sat on the bed and talked. He put his hand under her skirt and underwear, and inserted his finger into her vagina, and she “froze.” Then she stood up, and he apologized and said it would not happen again. Weeks later, defendant’s assistant arranged a meeting between defendant and Dunning in a hotel. At the hotel, Dunning met the assistant, who brought her to defendant’s room, where he opened the door wearing only a bathrobe which exposed his abdomen. In the room, Dunning saw stacks of paper on a table, and defendant told her he had contracts for three movies which he would sign if she agreed to group sex with him and the assistant. Dunning looked at the assistant, who had a blank expression. When Dunning started laughing, defendant yelled that this was “how this industry works,” and she would “never make it in this business.” She ran out of the room while defendant kept yelling. In 2005, Tarale Wulff was waiting on defendant at Cipriani SoHo Upstairs when he complimented her appearance and asked what she did when she wasn’t working in
The People’s expert, Dr. Barbara Ziv, is a forensic psychiatrist who has evaluated over 1,000 victims of sexual assault. She testified that she did not interview any of the complainants in this case, nor had she evaluated them in any way. She stated that her testimony was based on her general experience in the field. Dr. Ziv discussed rape trauma, which she defined as the responses victims of sexual assault experience. She also explained “rape myths,” which are preconceived notions, widely and persistently held, about how victims should respond to sexual assault, that are often wrong. Examples of rape myths, Dr. Ziv explained, are that most rapes are committed by a stranger, where in reality less than 15% are committed by people not known to the victim. Other misconceptions, she explained, are that most victims resist their assailants, that they promptly report an attack to a doctor or the authorities, and that they cut off contact with the perpetrator. Indeed, a victim will often maintain contact with an offender, and even develop a relationship with their attacker after the assault. The reason victims of sexual assaults often maintain contact with a perpetrator is because they fear doing otherwise will cause the latter to take steps that will impact their reputation, friendships and careers. Dr. Ziv also testified about how memory is affected by a traumatic incident, including a sexual assault. Because the traumatic nature of the experience causes the brain to focus narrowly, she explained, and de-emphasize external data that is not relevant to the immediate experience, people who are subject to such incidents will have clear memories of them. Defendant offered the expert testimony of Dr. Elizabeth Loftus, an experimental psychologist who specializes in the field of human memory. She testified that being exposed to misinformation after an event can lead to false memories of the event, citing the example that 80% of people who experienced a simulated car accident falsely
believed that the accident involved a stop sign, after being told so. She explained how ordinary people can have entire events planted into their minds and how one can change a person’s feelings about an event by supplying post-event information. Dr. Loftus also discussed the effect of urging a person to remember, which can lead to false recollection, and also said that extreme levels of stress and fright can impair one’s memory, particularly for peripheral details. She further testified that a traumatic event is not “indelibly imprinted in one’s memory,” but can fade over time in a manner similar to memories not formed in the context of trauma. We first address defendant’s procedural claims, and then his various arguments that the trial was patently unfair, and finally his position that, in any event, the People did not present sufficient evidence to convict him and that the evidence weighed in his favor. Defendant first claims that the two counts of predatory sexual assault against him violated the Ex Post Facto Clause (US Const, art I, § 10, cl 1), since they were supported by the alleged rape of Sciorra, which occurred 13 years before the predatory assault statute was enacted, and which the People were time-barred from pursuing as a standalone charge. In other words, defendant maintains, the People were improperly bootstrapping by using the predatory sexual assault statute to convict him for a crime that was beyond the relevant limitations period. We reject this argument as moot, defendant having been acquitted of predatory sexual assault ( see People v Shearin , 177 AD3d 504, 504 [1st Dept 2019] , lv denied 34 NY3d 1162 [2020]). Further, to the extent defendant argues that the very injection of the testimony by Sciorra prejudiced him, we find that he did not establish any such prejudice ( see People v Flores , 284 AD2d 123, 123 [1st Dept 2001], lv denied 98 NY2d
state, since the defendant was a nonresident in that case, and the Court of Appeals did not have occasion to address the statute’s applicability to residents. The first trial issue raised by defendant concerns the juror who was seated as Juror 11. Defendant contends that the court should have excused Juror 11, who, in answering a questionnaire for prospective jurors, wrote that her hobby was “novel writing,” and that she had never “been the victim of physical or sexual abuse, either as a child or adult.” The questionnaire asked whether the prospective juror, especially in light of defendant’s notoriety, would determine the case based only on the evidence, to which she said she would. The juror also represented in her responses that she would be able to follow the court’s instructions to avoid media coverage and using the Internet to follow the case, and that media coverage about the case which she had already consumed would not affect her ability to be a fair and impartial juror. Juror 11 stated that, in general, there was not any reason she could not be a fair and impartial juror to both sides, that there was nothing about the nature of the case that would affect her ability to be such a juror, and that there was nothing else she believed the court or the parties should know about her qualifications to serve. Upon individual questioning, Juror 11 disclosed that she was writing a novel, scheduled to be released several months later, called Age of Consent. She said that it was about the struggles of the main characters: three teenage girls and their parents. In response to a question about the nature of the novel, the juror stated that: “All three girls have some relationship with an older man but it’s not a predatory situation at all.” The juror also, in response to a question from defendant’s counsel, stated that she was not aware of any “press” about the book being about a predatory older man, and that she
had not done any research into predatory older men or victims of sexual assault because the book was not about those subjects. Defendant challenged Juror 11 for cause on the basis that she had not been forthcoming about the fact that her novel was about “predatory older men.” He brought to the court’s attention the fact that Juror 11’s website described her novel as being “about three young women in the 1980s, who negotiate fraught friendships, sexuality, class and predatory older men on the journey from innocence to independence.” Counsel argued that Juror 11 had a motivation to lie because service on the jury could increase sales of her book. The court rejected the challenge, indicating that it accepted the juror’s sworn statement that her book was not about predatory older men. After the jury was sworn, with Juror 11 as one of its members, defendant moved for a mistrial based on the selection of Juror 11, and, in the alternative, that she be removed for cause or at least be the subject of an evidentiary hearing. The application relied on not only the allegation that the juror purposely concealed the nature of her novel, but also an article in the Atlantic magazine about the death of the writer Elizabeth Wurtzel, which mentioned that Juror 11 was a friend of Wurtzel and stated that the juror “will be publishing her first novel this year, thanks in large part to [Wurtzel]’s example.” The article quoted Juror 11 as stating, without elaboration, that Wurtzel’s “fearlessness helped me tell my deeply personal story, albeit in novel form.” Defendant posited that this showed that Juror 11’s novel was semi-autobiographical, since she was 15 years old in 1983, the year in which the novel was set. This, defendant asserted, called into question her statement that she had never been sexually abused. Defendant also alerted the court to the fact that the juror’s literary agent was promoting her novel to the same
