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PEOPLE STATE NEW YORK v. ROGER G. DOYLE (04/14/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 1969.NY.41108 <http://www.versuslaw.com>; 300 N.Y.S.2d 719; 31 A.D.2d 490 April 14, 1969 THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,v.ROGER G. DOYLE, RESPONDENT Appeal from an order of the Supreme Court at Criminal Term (Albert S. McGrover, J.), entered April 17, 1968 in Kings County, granting a motion by defendant to dismiss the last remaining count of the indictment. Aaron E. Koota, District Attorney (Carl S. Wolfson of counsel), for appellant. Zolotorofe & Sanders (August Zolotorofe of counsel), for respondent. Benjamin, J. Brennan and Rabin, JJ., concur with Benjamin, J.; Beldock, P. J., dissents in opinion in which Christ, J., concurs. Author: Benjamin


Appeal from an order of the Supreme Court at Criminal Term (Albert S. McGrover, J.), entered April 17, 1968 in Kings County, granting a motion by defendant to dismiss the last remaining count of the indictment.

Benjamin, J. Brennan and Rabin, JJ., concur with Benjamin, J.; Beldock, P. J., dissents in opinion in which Christ, J., concurs.

Author: Benjamin

 This case presents the novel question whether section 130.15 of the new Penal Law overruled People v. Lo Verde (7 N.Y.2d 114) and People v. English (16 N.Y.2d 719), so that a defendant can now be convicted of the minor offense of sexual abuse in the third degree, despite the fact that the victim's testimony establishes a consummated rape and there is no corroboration of her testimony.

In a six-count indictment defendant was charged with robbery, larceny, assault (two counts), endangering the welfare of a child, and sexual abuse in the third degree. As the crimes were allegedly committed on September 26, 1967, the prosecution was under the new Penal Law, which was enacted in 1965, effective as of September 1, 1967 (Penal Law, §§ 5.05, 500.10).

At the outset of the trial, the prosecutor stated that the complainant would testify to completed acts of intercourse and oral and anal sodomy; that there was no corroboration of those acts; and that for that reason defendant had not been indicted for rape and sodomy. The prosecutor then consented to dismissal of the five counts charging robbery, larceny, assault, and endangering the welfare of a child; he did not consent to dismissal of the count charging sexual abuse in the third degree as he wished the appellate courts to have a clear-cut issue concerning the validity of a conviction on that count as to which the proof was of a consummated rape and sodomy and there was no corroboration of the complainant's testimony. The trial court granted the defendant's motion to dismiss the count of sexual abuse in the third degree, citing People v. Radunovic (21 N.Y.2d 186) as authority.

The People have appealed, contending that corroboration is not needed to establish that crime. We think the determination of the trial court was correct and should be affirmed.

The crime of sexual abuse in the third degree is new, at least insofar as it applies to adults (McKinney's Cons. Laws of N. Y., Book 39, pp. 307-308 [Practice Commentary on Penal Law, § 130.55]). In relevant part, it is defined as follows in section 130.55: "A person is guilty of sexual abuse in the third degree when he subjects another person to sexual contact without the latter's consent".

This crime is a class B misdemeanor, as further stated in this section, and so is punishable by a definite sentence not exceeding three months (Penal Law, § 70.15).

Section 130.00 of the Penal Law defines "sexual contact" as "any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party."

Sections 130.00 and 130.55 are parts of article 130, which encompasses all sex offenses. Section 130.15 (also in art. 130) is entitled "Sex offenses; corroboration", and it reads as follows: "A person shall not be convicted of any offense defined in this article, or of an attempt to commit the same, solely on the uncorroborated testimony of the alleged victim. This section shall not apply to the offense of sexual abuse in the third degree " (emphasis supplied).

In light of the just-quoted language, the issue at bar can be restated as follows: When the Legislature enacted section 130.15, did it intend to eliminate the need for corroboration when the offense charged was sexual abuse in the third degree (despite the fact that the offense actually committed was rape or another sex offense requiring corroboration), or did it intend to eliminate the need for corroboration only when the offense actually committed was the minor offense of sexual abuse in the third degree? Or, to restate it in still another way: Did the Legislature intend to permit a prosecutor to avoid the requirement of corroboration for rape by charging the defendant with only the petty offense of sexual abuse in the third degree when he had no corroboration of the victim's story that she had been raped?

We have found no clear clue to the legislative intent on this point.

People v. Lo Verde (7 N.Y.2d 114, supra) and People v. English (16 N.Y.2d 719, supra) were decided before the enactment of the new Penal Law. In Lo Verde the defendant was acquitted of rape but convicted on a count of endangering the morals of a minor by having intercourse with her; reversing the conviction, the Court of Appeals said (p. 116): "Were we to hold that no corroboration was necessary to support the conviction of the crime as charged in this indictment, then a prosecutor might easily circumvent the requirement of corroboration necessary for a conviction of misdemeanor rape simply by charging instead the impairment of the morals of a minor, as he did here. The law may not be so circumvented." In English the uncorroborated testimony of the victim was that a rape had been consummated; the defendant was acquitted of rape but convicted on counts of robbery, larceny assault with intent to commit rape, and attempted rape; citing Lo Verde, the Court of Appeals reversed as to the counts of attempted rape and assault with intent to commit rape "on the ground of a lack of the corroboration required by law for such convictions when testimony as to an actual rape has been received" (p. 720).

Soon after English the new Penal Law was enacted, with the effective date postponed for two years. For some years before its enactment, the revision of the old Penal Law had been the subject of a continuing study by the Temporary Commission on Revision of the Penal Law and Criminal Code. One of the areas of study was the Model Penal Code drafted by the American Law Institute; the Proposed Official Draft of that Code (1962) contained the following provision (pp. 150-151): "No person shall be convicted of any felony under this Article [dealing with sex offenses] upon the uncorroborated testimony of the alleged victim." In that Model Code (p. 147), sexual assault was classified as a misdemeanor. The Drafters' Notes (p. 151) said that the corroboration requirement was limited to felony prosecutions; that the need for corroboration in all cases would seem to have prima facie validity; that Dean Wigmore's attack on any need for corroboration made the drafters ...


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