A New York Sex Crimes Lawyer said that, in a six-count indictment defendant was charged with robbery, larceny, assault (two counts), endangering the welfare of a child, and sex abuse in the third degree. As the crimes were allegedly committed on September 26, 1967, the prosecution was under the new Penal Law, which was enacted in 1965, effective as of September 1, 1967.
A New York Criminal Lawyer said that, at the outset of the trial, the prosecutor stated that the complainant would testify to completed acts of intercourse and oral and anal sodomy; that there was no corroboration of those acts; and that for that reason defendant had not been indicted for rape and sodomy. The prosecutor then consented to dismissal of the five counts charging robbery, larceny, assault, and endangering the welfare of a child; he did not consent to dismissal of the count charging sexual abuse in the third degree as he wished the appellate courts to have a clear-cut issue concerning the validity of a conviction on that count as to which the proof was of a consummated rape and sodomy and there was no corroboration of the complainant’s testimony. The trial court granted the defendant’s motion to dismiss the count of sexual abuse in the third degree, citing a previously decided case as authority. A New York Criminal Lawyer said that, the People have appealed, contending that corroboration is not needed to establish that crime.
The issue in the case is whether the defendant can now be convicted of the minor offense of sexual abuse in the third degree, despite the fact that the victim’s testimony establishes a consummated rape and there is no corroboration of her testimony.
We think the determination of the trial court was correct and should be affirmed. The crime of sexual abuse in the third degree is new, at least insofar as it applies to adults. In relevant part, it is defined as follows in section 130.55: ‘A person is guilty of sexual abuse in the third degree when he subjects another person to sexual contact without the latter’s consent. This crime is a class B misdemeanor, as further stated in this section, and so is punishable by a definite sentence not exceeding three months).
Section 130.00 of the Penal Law defines ‘sexual contact’ as ‘any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party.’ Sections 130.00 and 130.55 are parts of Article 130, which encompasses all sex offenses. Section 130.15 (also in Article 130) is entitled ‘Sex Offenses; corroboration’, and it reads as follows: ‘A person shall not be convicted of any offense defined in this article, or of an attempt to commit the same, solely on the uncorroborated testimony of the alleged victim. This section shall not apply to the offense of sexual abuse in the third degree’.
In light of the just-quoted language, the issue at bar can be restated as follows: When the Legislature enacted section 130.15, did it intend to eliminate the need for corroboration when the offense Charged was sexual abuse in the third degree (despite the fact that the offense actually committed was rape or another sex offense requiring corroboration), or did it intend to eliminate the need for corroboration only when the offense Actually committed was the minor offense of sexual abuse in the third degree? Or, to restate it in still another way: Did the Legislature intend to permit a prosecutor to avoid the requirement of corroboration for rape by charging the defendant with only the petty offense of sex abuse in the third degree when he had no corroboration of the victim’s story that she had been raped? We have found no clear clue to the legislative intent on this point.
On June 14, 1968 the court of Appeals decided that the defendants were charged with rape, assault with intent to commit rape, and assault in the third degree (i.e., simple assault); the victim’s testimony as to a consummated rape was uncorroborated; the trial court dismissed the counts of rape and assault with intent to commit rape, and the jury convicted the defendants of simple assault. The Court of Appeals reversed and dismissed the entire indictment on the authority of Radanovich; the dissenters commented: ‘Once again, the majority of this court has extended the unsound rule and its progeny’ to a simple assault.
The latest case on this point is the 1969 case. In this case the defendant was convicted of attempted rape, robbery and grand larceny on the victim’s uncorroborated proof of a consummated rape during which the defendant took a change purse from the victim’s person. The Appellate Division reversed as to the attempted rape count and affirmed as to the robbery and larceny counts. By 5 to 2, the Court of Appeals affirmed. Speaking for the majority, Judge said the following: ‘If the development of the rule extending the requirement for corroboration in cases of rape to other crimes be followed closely, it will be seen the extension has been directed in each case to crimes intrinsically related to rape or committed in aid of effecting rape. ‘Robbery is not such a crime. ‘In this present case the jury could find the defendant deliberately took property from the person of the complainant while in the act of raping her. The larceny charge is in the same situation. Unlike the crime of assault, which to greater or lesser degree is a part of every forcible rape, there is no necessary interdependence between these two entirely distinct crimes.
The foregoing is all that we have found which is relevant to the question at bar. And that question, as previously noted, is whether the exemption of sexual abuse in the third degree from the corroboration requirement of section 130.15 of the new Penal Law means that a prosecutor who has no corroboration of a rape charge can instead now charge the rapist with the petty offense of sexual abuse in the third degree and have him convicted of that offense upon uncorroborated testimony of the rape.
In sum, we construe section 130.15 to mean that corroboration is unnecessary if the Actual offense committed, charged and proved is sexual abuse in the third degree; but that corroboration is still required if the actual offense committed and proved is a sex crime for which corroboration is required by statute (such as rape) and the offense charged is only sexual abuse in the third degree.
We have reached this conclusion because (a) running through the decisions in Lo Verde and its offspring is a thread of thought which seems to equate a prosecutor’s attempt to evade the corroboration requirement with invasion of a defendant’s rights or with some kind of impropriety; (b) section 130.15 apparently was intended to codify the holdings in English and Lo Verde, (c) when enacting the new Penal Law the Legislature greatly increased the requirement for corroboration by extending it to all sex offenses except sexual abuse in the third degree; (d) in Radunovic the court noted that ‘this well-defined legislative policy has been extended by the courts’ to cases where charges not requiring corroboration have been proved by evidence of a rape; (e) the history of section 130.15 and the commentaries on it indicate that the ‘offense’ of sexual abuse in the third degree was exempted from the corroboration requirement only because the contemplated offense was the minor one of improperly touching a woman in a dark theatre, crowded subway, etc., and it is impossible to obtain corroboration of such an offense; and (f) the reason for the exemption of the ‘offense’ from the corroboration requirement would not apply where the Charge is sexual abuse in the third degree but the Offense actually committed is a major sex crimes.
The court concludes that the order appealed from should be affirmed. Accordingly, the court held that, the appeal from an order of the Supreme Court, Kings County, dated April 17, 1968, which granted defendant’s motion to dismiss the fifth count of the indictment and discharged him. Order affirmed.
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