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Court held that the motion to dismiss the indictment C


A Queens Criminal Lawyer said that, defendant has applied for an order granting him ‘permission to inspect the minutes of the Grand Jury, or, in the alternative dismissing’ a three-count indictment accusing him, and a co-defendant, of (1) Assault, 2d Degree, committed July 17, 1965, ‘by willfully and wrongfully using a knife against’ the throat of a named female, ‘that being an instrument or thing likely to produce grievous bodily harm’; (2) Assault, 2d Degree, committed July 17, 1965 ‘by use of their clenched fists’ upon said female ‘thereby willfully and wrongfully wounding and inflicting upon her grievous bodily harm, to wit: Multiple bruises of the face and body’; and (3) Felonious Possession of a Dangerous Weapon, i. e., a dangerous knife, on July 17, 1965, with intent to use it unlawfully against another.

A Queens Sex Crime Lawyer said that, the basis of the motion is that ‘there was no testimony before the grand jury, or evidence, sufficient as a matter of law, to warrant a finding of the indictment’. The predicate for this conclusion is that since the criminal acts here charged were committed prior, but as direct steps leading, to the rape testified to by the prosecutor the indictment lacks a sufficient evidentiary foundation in view of the fact that no corroboratory proof of the rape was submitted to the grand jury.

A Queens Sex Crime Lawyer said that, the facts disclosed by the grand jury minutes are that the victim of the assaults was forcibly abducted in an automobile by two male persons–later identified by her as these defendants–and, while being carried away in the car, was given a choice of either participating in sodomy or submitting to rape, but refused either alternative. After having been ‘slapped around’ and frustrated in an attempt to escape, she was raped by each defendant, in turn, while the other held a knife-point to her throat and threatened to cut her if she didn’t stop screaming. Nevertheless, she resisted, but in vain. She was not examined by a doctor until August 10, 1965, and the police were not notified until August 12, 1965. She made no immediate disclosure to her parents although, within a day or two after the event, she told a neighbor about it. Other than her own testimony there is no evidence that she was abducted by anyone, or that she was in the company of these defendants on the occasion in question or that at or about the time of the occurrences narrated by her, she bore visible marks of recent physical violence or ravishment. When apprehended and questioned, the defendants denied having been in the girl’s company on the evening in question and specifically denied the charges made. There was no evidence that any knife was found or that either of the defendants had been known to possess one.

The issue in this case is whether the defendant’s indictment should be dismissed.

The court held that, clearly this evidence was insufficient to support an indictment charging rape because of the absence of the corroborative evidence required by Section 2013 of the Penal Law, which provides that, ‘No conviction can be had for rape or defilement upon the testimony of the female defiled, unsupported by other evidence’ and which, as judicially construed, requires corroboration extending to ‘every material fact essential to constitute the crime.’

Prior to the determination in one case decision which reversed convictions for and dismissed the counts of an indictment charging attempted rape and assault with intent to commit rape ‘on the ground of a lack of the corroboration required by law for such convictions when testimony as to an actual rape has been received’, the New York courts had tacitly or expressly followed the law as summarized in which Chief Judge Conway speaking for a unanimous court said: ‘At common law, in the case of sexual offenses, it was not necessary that the testimony of the injured female be corroborated. The necessity of corroboration, if it exists at all, must thus be found in a specific statute’.

The court then enumerated the existing statutes and concluded that in that case, one of incest, corroboration was not essential to a conviction because no applicable statute required it and that the conviction could be sustained even though the evidence against defendant consisted solely of the testimony of the daughter. Clearly the same result should follow on any sex crime charge where no corroboration of the complainant’s testimony is required by statute, and so it has been held, although, upon the affirmance, the Court of Appeals commented that the question whether there could be a conviction of attempted rape on the unsupported testimony of the female ‘is not presented by the record’.

After apparently reserving that question for future determination, the Court of Appeals thereafter rejected the contention that a defendant could not be convicted of assault with intent to commit rape upon the female’s unsupported testimony of a completed rape: ‘At the conclusion of the court’s charge to the jury, defendant’s counsel requested the court to charge that ‘if the jury finds that the act of rape was consummated they can’t convict of assault under that charge.’ The court declined and defendant’s counsel excepted. In our opinion the rulings were correct.

The rule is well settled that Penal Law § 2013, does not apply to an assault with intent to commit rape. It is to be noted that at the 1945 session of the Legislature a bill was passed amending Section 2013 of the Penal Law, by extending the provisions thereof to attempted rape but was vetoed by the governor. The court also pointed out that in 1886 the Legislature had repealed a statute which theretofore forbade conviction of ‘an assault with intent to commit a crime, or of any other attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault, or in pursuance of such attempt’ and the court then said that ‘Since the repeal of the statute above quoted, it would seem that the doctrine of merger as evidenced by that statute has not existed in this state’.

The People’s evidence in English tended to show that the defendant, by threat, had first obliged the girl to accompany him to his room, where he robbed her at knife-point. He then made sexual advances, but was rebuffed. His activities were interrupted when an importunate building superintendent rapped on the door and renewed an earlier demand for overdue rent. From this and the other evidence, the jury could have concluded that, not wanting his amorous endeavors to be interrupted further, English then compelled the girl to go with him to another apartment building a few blocks away; that they took an elevator to the top floor and then ascended some steps leading to a doorway to the roof; that at that point English, with the knife in his hand, asked the girl if she had any more money and, when she answered in the negative, ordered her out onto the roof; that she obeyed because, as she put it I had to do what he said’; that there, he obliged her to lie down; that he then committed two acts of sexual intercourse to which she submitted because she was ‘frightened really frightened and that he then left her telling her to stay on the roof until he got down or he would kill her. From this evidence the jury could have found and, by reference to the instruction given them on the assault count it is implicit in the guilty verdict that they did find, that the assault with intent to rape was committed antecedently, inside the door to the roof, by the defendant’s mute offer–through the display of the knife coupled with obviously present ability to exercise unlawful physical violence upon the person of his victim if she did not obey him and that such assault was committed for the purpose of preventing her resistance and with the intent to rape her. An examination of the record on appeal discloses that it differs from English only in the fact that the assault was not aggravated by the use of a weapon.

It is true that in our case the indictment does not disclose the commission of a rape nor that the assaults were committed with such an intent in mind, but the ‘rights of an accused may not be made to depend on the happenstance of draftsmanship’, and as the court said in another Connection, a defendant’s rights are to be determined by a test which construes evidence and not the theory of the pleader. Hence the decisive factor in this case is not what the District Attorney or the grand jury has elected to set forth in the indictment, but the testimony in the record.

Tested by that principle not only must the assault counts in the indictment before me be dismissed but a like result must ensue with reference to the third count of the indictment which accuses the defendants of criminal possession of the knife since possession of the knife is only a criminal act if possessed ‘with intent to use the same unlawfully against another’, and the proof in that regard depends upon the uncorroborated 1897, , and the proof in that that the defendants placed it against her throat and thereby committed the assault alleged in the first count of the indictment. Accordingly, the proof required establishing the possession ‘with intent to use’ and the assault with a dangerous weapon is identical. To give full accord, as amplified by English and Colon, it must be held as a matter of law that the third count of the indictment charging the defendants with possession of a dangerous weapon which, under the proof in this case, was used solely to accomplish the commission of the uncorroborated rape, cannot withstand attack because it would permit a conviction by circumvention of the rule requiring corroboration as that rule is enunciated in those cases. The entire indictment therefore must fall.

Reluctant as the court to come to the conclusion here enunciated I am somewhat solaced by the fact that if I am in error I can be quickly corrected because the District Attorney has the right to appeal from the order to be entered on this decision. In my opinion it is both desirable and expedient that he do so forthwith. Whatever the determination of the Appellate Division may be, the party aggrieved may, by permission, take a further appeal to the Court of Appeals and for the purpose of having the law definitively defined in this highly important area of human rights it would seem to be no less desirable that such an appeal be taken.

Accordingly, the court held that the motion to dismiss the indictment is therefore in all respects granted for the reasons above stated.

The rule is well settled that Penal Law § 2013, does not apply to an assault with intent to commit rape. If you are a victim of rape, seek the assistance of a Queens Sex Crime Attorney and Queens Criminal Attorney at Stephen Bilkis and Associates. Call us.

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