The accused was indicted for rape, assault and incest. The complainant is his thirty-six year old half-sister. The court dismissed the first count of the indictment charging rape by force, and the jury found the accused guilty of the remaining count of rape under the Penal Law, assault and incest.
A New York DWI Lawyer said he accused moved for an order arresting the judgment of conviction and setting aside the verdict of guilt as to the rape and incest on the ground that it was contrary to law and against the weight of the evidence. No effort is made to disturb the verdict of guilty of the simple assault.
The accused contends that the jury, by finding him guilty of simple assault only, negated any intent on his part to commit a rape. He also contends that the crime of incest could not arise from the gluttonous act, upon which the jury based its finding, the essence of such crime being an act of intercourse arising from the mutual consent of relatives within the prescribed line of consanguinity set forth in the Penal Law.
Since it is well established that when the accused has conceded the court’s jurisdiction by proceeding to trial, judgment after conviction may be arrested only for defects in the indictment the motion will be treated as an application for a new trial pursuant to the Code of Criminal Procedure.
There was ample evidence to support the jury’s finding that the accused was guilty of rape. The complainant testified to a state of facts from which the jury, if it believed her, could find beyond a reasonable doubt that her resistance was prevented by fear of immediate and great bodily harm which she had reasonable ground to believe would be inflicted on her.
The evidence presented by the State showed that on the day in question a series of events took place in the bedroom of the complainant, starting with a physical assault upon her which did not involve any attempt or apparent intent to have intercourse with her. A New York DWI Lawyer said after a lapse of time during which the complainant and the accused were engaged in what the complainant testified was an effort upon her part to reason with the accused in order to prevent further injury to her person and to reconcile their differences, an act of intercourse took place.
Since the first event was accompanied by a threat to kill the complainant under conditions which portrayed the accused as frothing at the mouth and raving like a madman, the jury could well have decided, and undoubtedly did decide, that while the accused during the first stage or phase of the events lacked any intention to commit a rape, such actions nonetheless instilled in the complainant a reasonable fear of immediate and great bodily harm which she continuously harbored until and during the time of the accused man’s successful efforts to engage her in sexual abuse. In short, in the state of the evidence produced upon the trial, there was no inconsistency in the verdicts of first degree rape and simple assault as distinguished from felonious assault.
On the count alleging incest, the jury was instructed, in substance, that the gravamen of the offense was an act of intercourse with a relative within the prescribed line of consanguinity. The jury was further instructed that if rape was to be the basis for a finding of incest, corroboration of the testimony of the complainant was necessary and that if mutual consent to an act of sexual intercourse was to be the basis for such a finding, there would also have to be corroborative evidence tending to connect the accused with the commission of the crime, since under such circumstances the half- sister would be an accomplice. A New York DWI Lawyer while there was no exception to the charge and it is not directly challenged, or is it even the subject of comment by the accused, its accuracy is nonetheless involved in the accused man’s contention that the jury’s verdict is contrary to law because an incestuous act presupposes mutual consent.
The contention that where the crime proved was also rape, the accused could not be charged with incest, was raised at a later date. While the court held that the evidence did not sustain the charge of rape, there is implicit in the court’s decision at least a tacit acquiescence in the contention for it held that the point could not be raised for the first time on appeal, the case having been tried and submitted to the jury upon the theory of incest.
While the court may be reluctant to depart from the law laid down in prior decisions of the court which are directly in favor of a later ruling which can be arrived at only by implication, the implications of the later decisions can be so irresistible that they become self-evident. If, therefore, there may be incest arising from proof of a statutory rape with a relative within the prescribed line of consanguinity, there may be incest arising from proof of first degree rape with such a relative. There is consent in neither. There is force, either actual or implied in law in both. The jury was, therefore, justified in returning a verdict of guilt as to both rape and incest and the charge was proper. The motion is denied.
Family members are supposed to make each other feel secure, but if you feel otherwise towards a family member, feel free to call the office of Stephen Bilkis and Associates and discuss your legal options with a New York Sex Crime Lawyer together with a NY Criminal Attorney.