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Issue in this Case is Whether Defendant’s Indictment Should be Dimissed

An New York Criminal Lawyer said that, defendant stands indicted for two counts of sodomy in the third degree, three counts of sodomy in the third degree, and one count of sex abuse in the second degree. The sodomy counts are Class E felonies and the sex abuse count is a Class A misdemeanor. All counts are “statutory” in nature, in that lack of consent is based upon the fact of infancy, of the victim having been 16 years of age at the time of the incidents involving him, the other having been 14 years of age, and lastly, 13 years old.

An Albany Sex Crime Lawyer said that, defendant has moved to dismiss the indictment upon the grounds of insufficient legal evidence before the grand jury to corroborate the testimony of the alleged victims as required by Section 130.16 of the Penal Law.

A New York Criminal Lawyer said the issue in this case is whether defendant’s indictment should be dismissed on the ground of insufficient legal evidence before the grand jury to corroborate the testimony of the alleged victims as required by Section 130.16 of the Penal Law.

A Queens Criminal Lawyer said that according to penal Law, Section 130.16, reads as follows: “Section 130.16 Sex Crime Offenses; Corroboration: A person shall not be convicted of consensual sodomy, or an attempt to commit the same, or of any offense defined in this article of which lack of consent is an element but results solely from incapacity to consent because of the alleged victim’s age, mental defect, or mental incapacity, or an attempt to commit the same, solely on the testimony of the alleged victim, unsupported by other evidence tending to: (a) Establish that an attempt was made to engage the alleged victim in sexual intercourse, deviate sexual intercourse, or sexual contact, as the case may be, at the time of the alleged occurrence; and (b) Connect the defendant with the commission of the offense or attempted offense.”

A Nassau Criminal Lawyer said that the corroboration requirement in this case is an anomaly. While it might serve a useful purpose where the complainant is a child of tender years, it may be subversive of justice in cases such as this one where the complainants are teen-age boys, under the age of 17, whose testimony can be readily measured by a jury by application of the same standards and rules of credibility used to weigh the testimony of older witnesses for whom corroboration is not required.

Indeed the illogic becomes more evident when one considers that corroboration of the testimony of teen-age complainants under the age of 17 is not required for forcible sex crime offenses or for non-sex offenses. If the complainants in this case had alleged against the defendant acts of forcible sodomy indeed, if they had charged him with attempted murder both offenses punishable by imprisonment for 25 years as against 7 years for the statutory charges here in fact alleged the jury would be free to believe or disbelieve the testimony of the complainants and to convict or acquit the defendant on that testimony alone, the same as it does with older complainants.

At common law the testimony of any victim of any sex crime offense, male or female, was not required to be corroborated. Such testimony alone was sufficient to support a conviction. The requirement of corroboration, that is, the necessity to produce independent evidence supporting the testimony of the alleged victim, is of statutory origin, and it is only very recently that it was required at all in cases of sodomy, either forcible or statutory. Illicit sexual acts are usually performed in secret, out of the view of corroborating witnesses. In cases of both anal and oral sodomy there is little chance, if any, of obtaining corroborative physical evidence.

Section 130.16 did away with the corroboration requirement for forcible sex offense charges but retained it for the statutory sex offenses, those where lack of consent is an element but results solely from incapacity to consent because of the alleged victim’s age, mental defect, or mental incapacity. Thus the new section purported to do away with sex discrimination by making no distinction with respect to the probable trustworthiness of the alleged victim based upon sex, and to take cognizance only of the age and mental condition of the alleged victim regardless of sex.

Nevertheless, sex discrimination remains, for the only corroboration requirement in the law based on the nature of the offense is that required for the sex offenses and offenses related thereto. There is no corroboration requirement for attempted homicides, assaults, robberies, or burglaries. For these serious sex crimes the regular rules of credibility and the standard of reasonable doubt seem sufficient. But not for sex offenses! And now superimposed upon the sex discrimination inherent in the existence of Penal Law 130.16 is an unwarranted age discrimination that makes courts go to great and tortuous cerebral gymnastics to satisfy an unnecessary corroboration requirement that often results in heinous and vicious sexual assaults upon children going unpunished when the regular rules of credibility and the standard of reasonable doubt would suffice, as it does in the case of other serious but non-sexual offenses.

And how degrading it is that teen-agers under the age of 17 years, who have been sexually assaulted, are lumped together, as far as their trustworthiness is concerned, with mental defectives and mental deficient. They can themselves be held criminally responsible for many serious violations of the penal law and convicted upon the uncorroborated testimony of others, but when they themselves are victims of certain sexual assaults they are deemed untrustworthy.

Indeed it may be that Penal Law 130.16 violates the constitutional right of teen-agers under the age of 17 years to the equal protection of the laws. Inasmuch as the court has in fact found sufficient corroboration in this case to satisfy Penal Law 130.16 it is not necessary to reach this constitutional issue. However, in any event it would be preferable for the legislature to take the initiative to remedy this inequitable situation.

The evidence shows that the victims J.P., C.V., and L.G. were each, at the time of the offenses charged herein, residents of a certain group home for young boys in the City of Albany, and each was known to the other. The evidence was not well developed in the grand jury presentation. It is not clear whether any person other than the defendant and the respective alleged victim was present at the time of any of the alleged acts of sodomy. However, the court feels that in each case there was sufficient evidence to satisfy the corroboration requirement and to sustain the indictment and each count thereof.

In all three cases the second prong of the corroboration rule is readily satisfied. Going forward in time, in each succeeding case it is the preceding alleged victim that introduces the subsequent alleged victim to the defendant. This readily connects the defendant as the perpetrator of the culpable acts charged. With respect to the first of the cases, that of the infant victim this argument works just as well in reverse. Thus, if the acts of sodomy and attempted sodomy complained of in fact occurred, there is no question but that there is sufficient corroboration of the defendant as the person committing them.
In the instant case there clearly appears to be a common scheme or plan in the alleged activities of the defendant. Each of the alleged victims is a young boy, resident at the same group home in defendant’s neighborhood; each of the criminal acts and attempted criminal acts are alleged to have occurred in the defendant’s apartment; each succeeding alleged victim is introduced to the defendant and brought to his apartment by the preceding alleged victim at the request of the defendant; each of the criminal acts alleged are similar in nature, acts or attempted acts of anal and oral sodomy.

It being clear that the alleged activities of the defendant in the instant case constitute a common scheme or plan, then the corroborated alleged crime against complainant C.V. provides satisfactory corroboration in the cases of complainants. Certainly proof of the allegations in the case the second complainant enhances the reliability and credibility of the other and raises the trustworthiness of their accusations to a level at which, if the jury believes their testimony, the criminal justice system need reasonably not fear that the judgment of conviction may be based on a fabricated accusation. Thus the spirit and purpose of the corroboration rule, as well as its letter, are satisfied by this analysis.

The situation might be different if none of the three cases were individually corroborated. Then there would be no enhancement of the trustworthiness of any of the cases. But where one case involved in a common scheme or plan can stand by itself i. e., the trustworthiness of that charge, if believed, would be sufficient to sustain a conviction it enhances the trustworthiness of the other cases involved in that common scheme or plan and may under the totality of the circumstances supply the corroboration required in each case.

In the instant case of course, the acts of sodomy sought to cross-corroborate each other were not performed upon the same alleged victim. But in the case of a common scheme or plan such as here, where each of the alleged victims were young boys living together in the same group home, where each alleged victim was introduced to the defendant and brought to the defendant’s apartment by the preceding alleged victim, where each alleged act of sodomy occurred at the defendant’s apartment under the same circumstances, and where at least one of the cases is separately corroborated, it appears wholly reasonable to consider each of the alleged victims as alter egos, and thus in effect one and the same victim, in which case the evidence of each case, under O’Sullivan, supra, would be admissible to prove the other, and each would be corroborative of the other.

It is further probative of the issue here that the original rationale of the corroboration requirement in sex offense cases, now of course discredited, is that a substantial number of young girls and women are given to sexual fantasies and to “contriving false charges of sexual offenses by men”. Even if this were true it would hardly apply to complaints of sodomy by young boys. And in the instant case there is no evidence that “animosity” prompted the complaints; indeed, on the contrary, except for the alleged nefarious acts of sodomy, the defendant was good to the complainants. Thus these complaints are not inherently suspect.
Upon all the evidence before the grand jury, the court finds that with respect to each count of the indictment there was before the grand jury, in addition to the testimony of the alleged victim involved therein, other evidence tending to establish that an attempt was made to engage the alleged victim in deviate sexual intercourse at the time of the alleged occurrence, and to connect the defendant with the commission of the offense or attempted offense; thus the corroboration requirement of Penal Law 130.16 has been met. The court further finds that there was sufficient legal evidence before the grand jury to sustain the offenses charged in each of the counts of the indictment.

Accordingly, the court held that the motion of the defendant to dismiss the indictment and each count thereof for alleged failure of sufficient legal evidence to sustain same is in all respects denied.

Section 130.16 did away with the corroboration requirement for forcible sex offense charges but retained it for the statutory sex offenses, those where lack of consent is an element but results solely from incapacity to consent because of the alleged victim’s age, mental defect, or mental incapacity.

If your child is a victim of rape or sodomy, you will need the help of an Albany Criminal Attorney and Albany Sex Crime Attorney at Stephen Bilkis and Associates. Call us for free legal advice.

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