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Defendant Appeals Weapons Possessions Charge, Arguing Lack of Evidence


On July 29, 1974, the Criminal Court of the City of New York, New York County heard a sex crime case. The defendant was charged with the sex crime of rape and sodomy and possession of a dangerous weapon. The Grand Jury did not indict the defendant for the rape and sodomy charges on the ground that there was no corroboration of the complainant’s testimony as to the intercourse. He was charged only on possessing a dangerous weapon on March 18, 1974. The defendant now argues to have the dangerous weapons charge dismissed because the only proof of unlawful intent would be the complainant’s testimony that she was raped. If there is no rape charge, then he claims that he cannot be convicted of the weapons charge.

In the area of sex crimes, the law of corroboration has changed over the years. The courts did not initially require corroboration of the victim’s testimony when a defendant was charged with attempted rape, assault with intent to commit rape, and other related offences because the Penal Law required corroboration only for the actual crime of rape. Because other related crimes did not require corroboration, a defendant could be convicted of related crimes on uncorroborated testimony of the victim that a consummated rape occurred.

The 1967 Penal Law extended the corroboration requirement to every sex crime as well as an attempt to commit a sex crime. The law changed again in 1972 when an amendment required corroboration of the victim’s testimony that she did not consent to intercourse. Part of this law was repealed in 1974. Today, corroboration is not required to convict a defendant for a sex crime unless there is a lack of consent resulting from an incapacity to consent due to age, mental defect, or mental incapacity.

In People v. Sigismondi, the defendant was charged with assault and felonious possession of a dangerous weapon. The victim stated that she was forced into a car by two men and raped by each one as the other held a knife to her throat. The court ruled in this case that the possession of a knife is only a criminal act if the user had the intent to use it unlawfully against another. The proof of that depended on the uncorroborated testimony of the female complainant that it was placed against her throat. The instance then became assault.

Five years after the Sigismondi case was decided by the Court of Appeals, subdivision 5 was implemented. It stated that if a victim testifies to a completed rape, corroboration is not needed to support the defendant’s conviction for assault or for possessing a dangerous weapon used in the sex crime. In the Governor’s memoranda, it is stated that the new law would change the law that if a charge of sexual assault could not be proven, then charges such as assault or possession of a weapon cannot be proven either. The new bill allows these other charges to be tried separately even if the rape charge fails.

The instant case heard by the court took place on November 14, 1973, so the 1972 amendment and subdivision 5 deal with these issues.

The defendant’s motion to dismiss was denied.

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