Two male persons, defendants, forcibly abducted the victim (of the assaults) in an automobile. While being carried away in the car, the victim was given a choice of either participating in sodomy or submitting to rape but refused either alternative. A New York Sex Crimes Lawyer said 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 10 August 1965 and the police were not notified until 12 August 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 the victim’s 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 rape.
A New York Sex Crimes Lawyer said the defendants were apprehended and questioned but 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.
One of the defendants 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 17 July 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 17 July 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 17 July 1965, with intent to use it unlawfully against another.
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. A Queens Sex Crimes Lawyer said that the predicate for this conclusion is that since the criminal acts charged were committed prior, but as direct steps leading, to the rape, as testified to by the prosecutrix, 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.
Here, the evidence was insufficient to support an indictment charging rape because of the absence of the corroborative evidence as required by 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.
Before, 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. A Nassau County Sex Crimes Lawyer said the court enumerated 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 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. In that case, the Appellate Division, whose decision was affirmed without opinion, said: 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.
Thereafter, the court necessarily extended its ruling to encompass a case where there was uncorroborated testimony of a completed act of sexual intercourse but in which the prosecution did not have to prove the completed sexual act to sustain its other criminal charges against the defendant. Until then, the case could have been interpreted as being confined to the facts of that particular case, that is to say, where the completed act of sexual intercourse was the sole conduct constituting the gravamen of the charges of both rape and impairing; a number of courts had interpreted it as being restricted to the fact pattern therein presented. Thus, in another case, a charge of attempted rape was upheld, there being no charge of rape in the indictment, although the uncorroborated testimony of the female showed a completed rape.
At this point, the court overturned a long standing legislative policy theretofore uniformly recognized by the courts. The extension of the original reach of apparently bespeaks a determination of the Court of Appeals to enunciate a newly adopted policy with respect to sex offenses but the scope of that policy cannot be determined from a reading of the opinion or can it be reliably estimated by an analysis of the record on appeal.
The People’s evidence in a similar case 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, defendant 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, defendant, 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 and that he then left her telling her to stay on the roof until he got down or he would kill her. From the 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.
In another case, an examination of the record on appeal discloses that it differs from the aforesaid case only in the fact that the assault was not aggravated by the use of a weapon. Here, the court concisely set forth the present state of the law when it said the jury was instructed corroboration was not essential as to the attempt (to rape) and the assault (with intent to rape) but this instruction, it said, was reversible error for under such circumstances corroboration would have been required.
Considered in the light of the respective records on appeal, the rationale to be drawn from prior holdings of the court would seem to be that if the only perceivable intent underlying the antecedent attempt to rape, or the antecedent assault with intent to rape, is to perpetrate the sexual act, then, regardless of the manner or the grievous physical consequences of its commission, there can be no prosecution for such act if uncorroborated testimony as to an actual rape has been received.
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.
Recent case laws have now established the law to be that where a criminal assault is committed solely in furtherance of the ultimate goal of rape, and there is uncorroborated testimony in the record that the rape was consummated, there is no lawful basis for charging a defendant with the commission of the antecedent assault. Tested by such principle, not only must the assault counts in the indictment 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 and that the defendants placed it against her throat and thereby committed the assault alleged in the first count of the indictment.
Thus, the proof required establishing possession with intent to use and the assault with a dangerous weapon is identical. 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 the instant 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 landmark cases. The entire indictment therefore must fall.
Obviously, the holding here makes it possible for a defendant to unilaterally thwart his prosecution (and justice) by the simple expedient of pressing the attempted rape or the assault with intent to commit rape to a successful conclusion. Thus, one who responds to the entreaties of the assaulted female, and foregoes his desire to rape her may, be convicted of attempted rape or of an assault with intent to commit the crime of rape, but one who is completely ruthless and proceeds to finish the job by actually raping his victim is immune from conviction.
Henceforth, the motion to dismiss the indictment is, in all respects, granted.
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