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CPL 60.42… cont

The complainant was the principal witness for the prosecution and her credibility and emotional and mental history were substantial factors at the trial. She testified that the defendant had telephoned her several times, the day of the alleged sex crimes, and that she returned his calls. He asked her to come to his house which was several blocks away, so that they could discuss a new course being offered in a College school. The complainant went to the defendant’s home, entered through the front door, and sat down at the kitchen table. She didn’t see anyone else in the house. After a short conversation, the complainant asked the defendant for a glass of water. When she drank the water she started getting sleepy, dizzy and tired. The next thing the complainant remembered was that she was in the basement being pushed onto and against a couch. As she was struggling, the other two defendants entered the basement from a back room. The complainant started screaming, protesting and crying, but the defendant held her down and ripped off her shoes, socks, dungarees and underwear. The complaint’s testimony then followed with a long, lurid and detailed recital of vicious, savage and sadistic sexual assaults and abuse including, but not limited to, deviate and unnatural sex and bestiality.

The complainant then testified that when the opportunity presented itself, she ran, naked from the waist down, out the back door of the basement and stood, paralyzed, behind some bushes in an alleyway. From that hiding spot she saw the defendants leave the defendant’s house in an attempt to find her. As she was watching the defendants, she ran towards a house with a light on, knocked on the door and stumbled into the home of the neighbors.

Although portions of the police reports tend to support parts of the complainant’s testimony, there also appear therein startling, baffling and important contradictions and discrepancies. As the defense brought these inconsistencies between the complainant’s trial testimony and her previous statements to light the theory of the defense became apparent. The defendants contended that the complainant either instigated or consented to any sexual activity which occurred. They alleged that the rape complaint was the result of the humiliation she had suffered and the resultant anger and fury that possessed her when water balloons, purposely placed by the complainant in her bra, fell and burst upon the floor to the taunting, scornful and infuriating laughter of the defendants. As incredible as this defense may appear, the evidence offered by defendants, but not admitted by the trial court, tends to support defendants’ position at least to the extent that the issue should have been fully explored and then submitted to the jury. Although the point is moot in the light of our reversal of the convictions, it should be noted that there was no inconsistency in the verdict.

The defendants were acquitted of the crimes of rape and sodomy and convicted of the crimes of sex abuse and assault. Based upon the evidence at the trial, the guilty verdict was supported by the record and there is no question that an acquittal on rape and sodomy counts does not preclude a conviction for sexual abuse. Although complainant’s testimony, standing alone, supported a conviction on all three counts, the hospital records, which revealed the absence of semen and no damage to complainant’s anal area, provide a rationale for the verdict. The lack of medical corroboration of the crimes of rape and sodomy and the testimony that the complainant was drugged during the events sufficiently explain the verdict.

The defendants also argue that the count charging sex abuse in the first degree must be dismissed because the indictment, without further elaboration, merely sets forth the statutory definition of the crime. This contention has been urged for the first time approximately eight months after oral argument of this appeal and just prior to the rendition of determination.
At the sentencing, the court took into account the defendants’ refusal to discuss the case with the Probation Department. The court was informed that defendants had refused to discuss the matter upon advice of counsel since, if successful on appeal, such statements might be admissible at a retrial. The sentencing court stated that it does not accept that because any statement the client may make to probation in the event that the appellant were successful on an appeal would not, under any circumstances, be admissible on a retrial of the indictment. Although the County court do not consider an indeterminate sentence of five years to be necessarily excessive, the importance that the sentencing court attached to the defendants’ refusal to speak with the Probation Department is demonstrated by the court’s putting over of the sentencing of the defendant after he indicated a willingness to speak with that department. The test for determining the voluntariness, and therefore admissibility, of inculpatory statements is whether such statements were extracted by any sort of threats or violence.

Under this test, any statements made to the Probation Department would clearly be inadmissible at the retrial on the direct case because there is certainly an implied promise that candor with the Probation Department may result in a recommendation of leniency. It is unclear, under the rule enunciated that such statements could be admitted into evidence for impeachment purposes. Albeit cautious, it was proper for the defendants, upon advice of counsel, to refuse to speak with the Probation Department.

Two judgments of the County Supreme Court is reversed, on the law, and new trial ordered. The findings of fact are affirmed.

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