The case of The People of the State of New York, Respondent v. Richard P. K, Appellant, was decided on December 9, 2010 by the Supreme Court of the State of New York, Appellate Division, Third Department. On July 27, 2009, the County Court of Delaware County convicted the defendant of sex crimes including two counts of sexual abuse in the first degree. The defendant was also convicted of two counts of sexual abuse in the second degree and two counts of forcible touching. Additionally, he was charged with two counts of child endangerment.
The defendant and his roommate, a Level 3 sex crime offender, went to a park to swim with an 11 year-old boy. After consuming beer and giving the boy cigars, the defendant forcibly touched the boy on his genitals. After the boy ran home and told his mother, the defendant was arrested and charged with two counts of sexual abuse in the first and second degree and two counts of forcible touching and endangering the welfare of a child. The defendant was convicted by a jury and sentenced to consecutive 6-1/2 year prison terms on his convictions for the sex crimes. He was also sentenced to six one-year terms on the remaining six crimes plus 5 years of post-release supervision.
The defendant maintains that not all of the crimes for which he was convicted were based on legally sufficient evidence. He claims that he did not force the victim to submit to the sexual contact and that it was a playful and consensual encounter that was not related to sexual gratification. The defendant did not make a motion challenging the legal sufficiency of the evidence at trial. The Court ruled that after reviewing records, the verdict of sex crimes of sexual abuse in the first degree and second degree and forcible touching is not against the weight of the credible evidence introduced at trial.
The defendant claimed that he used no force in any contact with the boy at the park. Therefore, there was no forcible compulsion which is required for the sex crime to be sexual abuse in the first degree. The victim testified that the defendant had been wrestling with him and “tapped” him in the genitals. The boy then said that he told the defendant to stop touching him that way, but the defendant began to wrestle a short time later, pushed him to the ground, and began touching his genitals again. The victim stated that the defendant had also tried to remove his shorts while they were swimming in a pond. This proved that the defendant did use force upon the victim in order to have sexual contact with him.
In addition, the defendant’s claim that the sex crime was not motivated by his desire for sexual gratification was also rejected by the Court. The defendant’s roommate testified that the defendant had admitted to him that he was sexually attracted to the boy. Another factor was that the victim told the Court at the hearing that the defendant wanted to use a penis pump on him. These factors point to the fact that the defendant did intend to commit the sex crime because of his desire for sexual gratification.
In addition, the defendant argued that the victim’s statements in Court were inconsistent with those that he had made at other times, and therefore they were not credible. The Court realized that there were inconsistencies, but the victim maintained that the defendant forcibly touched him and made sexual contact in his statements during the investigation and previous hearing. The Court also saw the inconsistencies as insignificant and not enough to dismiss the victim’s testimony.
It was further ruled that the defendant did receive the assistance of counsel throughout the proceedings. Counsel limited the cross-examination of the defendant regarding his past criminal history and raised questions about the victim’s inconsistent statements. Finally, it was determined that the defendant’s sentence was not excessive. The Court thereby found that there was no reason to modify the original Court finding.