This is an appeal made by the defendant from a judgment of the Supreme Court rendered on September 11, 1991, wherein he was convicted of the crime of rape in the first degree, rape in the third degree, sodomy in the third degree (two counts), sexual abuse in the first degree (nine counts), kidnapping in the second degree and robbery in the third degree, upon a jury verdict, and imposing a sentence.
The Supreme Court ordered that the judgment be modified by reversing the convictions for kidnapping in the second degree under counts 2,12 and 28 superseding Indictment No. 45775/89, vacating the sentences imposed thereon and dismissing the other counts of the indictment. The Supreme Court further ordered that the judgment is modified, on the law, wherein the provision that the terms imposed for the sexual abuse in the first degree which shall run consecutively to each other shall be deleted. Said provision was held to be substituted with provisions that counts 5 and 6 shall run concurrent with each other but consecutive to all other counts, which count 13 and 14 shall run concurrent with each other but consecutive to all other counts. As to the other parts of the judgment, the same are affirmed by the Supreme Court.
The Supreme Court discussed that the merger doctrine requires the reversal of the defendant’s convictions for all three counts of kidnapping in the second degree. The evidence has sufficiently proven that the asportations of the three victims were incidental to the commission of the sexual assaults.
Also, it appears that the defendant’s acts under counts 5 and 6 is tantamount to only one transaction which is separate and distinct from the sexual assault charged in counts 7, 8 and 9. It was made clear by the Supreme Court that concurrent terms must be imposed in acts representing a single continuous sexual assault but consecutive terms may also be imposed for separate and distinct sexual assaults.
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This is an appeal made by the defendant from the judgment of the Supreme Court rendered on October 2, 1984, wherein said defendant was convicted of attempted rape in the first degree, sexual abuse in the first degree, and endangering the welfare of a child, after a non-jury trial and imposing a sentence.
The Supreme Court ordered that the judgment be reversed and that the indictment be dismissed and the matter is remitted back to the Supreme Court for the reason of entering an order in its discretion pursuant to CPL 160.50.
The prosecution presented as its key witness was an eight year old girl. According to the witness, the defendant who was her mother’s boyfriend, sexually abused her on Saturday, October 29, 1983, at approximately 1:00 o’clock in the afternoon at her mother’s bedroom. Her mother had gone shopping and her siblings were asleep in the adjacent room. After the lapse of two days from the incident, her mother observed dried blood in the child’s underwear. The medical examination result revealed that a laceration was found in the vagina of the child. However, her hymen was intact.
On the other hand, the defendant testified that he was never left alone with the child. The child’s mother denied that she left the children with the defendant on the day that the child said she was molested. According to the child’s mother, she was on the other room viewing television.
The Penal Law prescribed that at the time that the defendant was indicted, the People were required to present independent and corroborative evidence which if interpreted with the victim’s testimony in such a manner as to furnish the necessary connection between the defendant and the crime. In this instant case, it appears that the requirements were not met.
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