Joseph Falbo, Rockville Centre, for defendant.
Denis E. Dillon, District Attorney of Nassau County, Mineola (Monica J. Hickey of counsel), for plaintiff.
Donald P. DeRiggi, J.
The defendant, Jay Seifert, by his attorney, Joseph Falbo, Esq., has brought a motion seeking the following relief, inter alia: an inspection of the Grand Jury minutes and a dismissal of the indictment on the basis that the evidence presented to the Grand Jury was insufficient to sustain the offenses charged or any lesser offenses.
The defendant has been indicted for one count of coercion in the first degree, a class D felony, one count of bribe receiving in the third degree, a class D felony, and one count of official misconduct, a class A misdemeanor. The allegations are that the defendant demanded, threatened and/or accepted sex from the passenger in a motor vehicle in exchange for and with the understanding that he would not proceed against the driver of the motor vehicle who was driving in violation of the Vehicle and Traffic Law.
A. Sufficiency of Evidence
The evidence presented, when viewed in the light most favorable to the People, is sufficient to sustain the indictment as to all counts contained therein. The issue regarding force, i.e., an implied threat that placed the complainant in fear of physical injury to herself or another, is supported by the evidence. In People v Bennett (79 N.Y.2d 464 ), the facts are somewhat similar and the Court finds the evidence sufficient on the issue of force. In Bennett, the victim was stopped by a police officer who advised her that she had been driving erratically and had failed to signal a lane change. The officer instructed the victim to leave her car, walk a straight line and then ordered her to go to the passenger seat of his patrol car. Once in the police vehicle, he told her to blow in his face as a sobriety test. When the victim did so the officer began to fondle her. He then told her that he was going to " do it" with her but that he had to go back to the barracks for a condom. The victim followed the officer to the barracks in her own car but the officer had retained her license and registration. At the barracks, the officer put the victim in the police car and told her to wait while he went inside to get a condom. When he returned they drove off to a secluded area where the officer sexually attacked the victim. The victim testified that she was terrified throughout this entire period and, since the defendant was armed, she felt that any escape attempt would be futile.
Likewise, in People v Smolen (166 A.D.2d 248 [1st Dept. 1990]), a case involving sodomy and sexual abuse, the victim testified
that he was " frozen in fear" and the reason why he complied with defendant's requests was because he did not want to die.
In determining the sufficiency of evidence and the existence of force, the inquiry is focused on what the victim, observing the defendant's conduct, feared the defendant would or might do if the victim did not comply with his demands. (People v Thompson,72 N.Y.2d 410, 415-416 .) Further, whether the sexual acts were voluntary or the result of forcible compulsion is a question of fact for the ...