Posted On: April 18, 2012 by Stephen Bilkis

Juvenile Delinquency Case in Family Court of the City of New York, Albany County

This case involves a juvenile delinquency hearing in which the Respondent was found to have committed forcible oral, vaginal, and anal intercourse with a 14 year-old female. After lubricating his penis with beer, he forced it into the victim’s anus. If an adult committed this sex crime, it would be considered to be two Class B felonies of rape and sodomy in the first degree. When the original case was heard, the Respondent was only charged with the Class E felonies of rape and sodomy in the third degree. The Court intended to examine the statutory framework in this area to determine the Respondent’s legal culpability and to consider if a lesser included offense was authorized and warranted.

The law determines that lack of consent is an element in a sex offence, and that the 14 year-old victim of this crime did not have the capacity to consent because of her age. In this sex crime case, age was the one circumstance excluded from the two counts charged in the petition. The Respondent cannot be found guilty unless another factor exists, such as State confinement, physical helplessness, mental incapacity, or other factor. There can also be lack of consent in date rape situations when a victim says, “No.” The problem in this case was that the petition did not charge date rape for either of the counts and there are no other “incapable of consent” provisions that applied in this case. Just because these were not charged does not give the Court the right to violate due process notice requirements or include the offences after the fact.

The main focus was then to determine if the Court could consider any lesser included offense, such as one committed as a matter of course when a greater crime has been committed. In Juvenile Delinquency cases, this may not be done unless specifically authorized. The Family Court Act, Article 3 says nothing on the subject of considering lesser included offenses at trial. This Court does seem to prohibit the inclusion of lesser offenses. The offenses must be considered in appropriate order to determine if the sex crime would constitute a crime if committed by an adult. If not, the petition must be dismissed.

The Court of Appeals has examined the issue of including lesser included offenses. In more than one case, the Family Court did allow the consideration of a lesser included offence. The People v. Glover case presented a two-part test that determined that it must be shown that it is impossible to commit the greater crime without also committing the lesser offense. Secondly, it must be shown that the offender committed the lesser offense but not the greater one.

By looking at a chart of the Elements of Sodomy in the Third Degree Sexual Misconduct (Class E Felony) (A Misdemeanor), it was found that all elements of the greater crime of Sodomy in the Third Degree and of Sexual Misconduct were the same. It would have been impossible to commit the greater sex crime without also committing the lesser sex crime. The Court also needed to determine the possibility that a lesser crime was committed, but the greater crime was not. There was no dispute in this factor.

If both parts of the Glover test are met, the lesser offense may be included. Therefore, if either the prosecutor or defendant requests that the lesser offense be included, it must do so. The next factor to be considered in this case is what the Court should do when neither the prosecutor nor defendant request this inclusion.

The Court ruled that the facts of this case support a finding of both rape and sodomy in the first degree. Both the prosecutor and defense approached this case as a lack of consent case and not an incapability of consent case. Because the Respondent claimed that the victim agreed to the sex acts, he was not considered to be prejudiced by the Court when the lesser offense was included that has a lack of consent as a requirement. The Court’s separate findings of fact found that the Respondent committed acts that would have included the lesser crimes of sexual misconduct on two counts if it had been committed by an adult.