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Forcible compulsion is found to be apparent


On 19 October 1987, at approximately 7:00 a.m., the bodies of two victims, a reputed drug dealer, and his girlfriend were discovered in the passenger compartment of a grey Plymouth in the vicinity of Bronx River Avenue and the Cross Bronx Expressway. The drug dealer’s body was slumped over that of his girlfriend, which was in a seated position in the front passenger seat of the vehicle. The defendant was arrested and charged in relation to the crime.

At trial, four photographs of the bodies were introduced in order to illustrate the position of the bodies and the crime scene. The evidence which connected the defendant to the homicides was the testimony of a witness, who stated at trial that he was privy to a conversation in the home of his brother-in-law, in which the defendant told him the details of the crime and his reason for the murder the victims.

On 7 February 1990, the Supreme Court of Bronx County rendered judgment convicting defendant, after a jury trial, of two counts of murder in the second degree, and sentencing him to consecutive terms of imprisonment of from 15 years to life and from 25 years to life.
On appeal, the judgment was unanimously affirmed.

Here, based upon the evidence in the light most favorable to the People, and giving due deference to the jury’s finding with respect to credibility, the evidence was indeed sufficient to support the verdict. The witness’s criminal history was fully presented to the jury, and the defendant was not able to point at anything in the record which would warrant disturbing the jury’s finding with respect to that testimony, which was supported by the other evidence submitted. Moreover, the trial court did not commit any error when it admitted in evidence the photographs of the victims’ bodies. While, as a rule, photographs of the victims’ corpses which are likely to arouse the passions of the jury should not be admitted unless they tend to prove or disprove some material fact in issue, the photographs here were properly admitted to illustrate the positioning of the bodies in order to show that the witness’ account of what the defendant said comported with the physical evidence. Their probative value outweighed any potential prejudice. Furthermore, evidence of uncharged crimes is admissible if the evidence tends to establish an element of the crime under consideration or is relevant because of a recognized exception to the general prohibition against the admission of such evidence. Thus, the testimony concerning the defendant’s and his mother’s prior involvement with the male victim’s drug business, was properly admitted for the purposes of completing the narrative and of demonstrating the defendant’s motive to commit the crime.

Meanwhile, on or about 13 December 2007, the Supreme Court of Bronx County rendered judgment adjudicating the defendant as a level three sex offender pursuant to the Sex Offender Registration Act or Art 6-C of the Correction Law.

On appeal, the judgment was affirmed, without costs.

According to the Appellate Court, the People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support the level three sex offender adjudication. Although the defendant pleaded guilty to statutory rape and not rape involving forcible compulsion, in determining the proper classification, the Board of Examiners of Sex Offenders, as a rule, is not limited to a defendant’s admissions upon entering a plea but may consider reliable hearsay evidence, including the risk level assessment instrument, victim statement, case summary and presentence investigation report.

Here, the finding of forcible compulsion was amply supported. What is important is not what the defendants would have done, but rather what the victim, observing their conduct, feared they would or might do if she did not comply with their demands. Notably, the superior court information included the 13-year-old victim’s statement that the 29-year-old defendant was aided by two unapprehended males who restrained and assaulted her. As to other criteria, the drug or alcohol abuse factor was established by the defendant’s admission to corrections personnel that he had a problem with marijuana as well as by the results of a screening test for alcoholism. The factor for lack of acceptance of responsibility, on the other hand, was established by evidence that defendant denied responsibility for forcible rape and refused or was expelled from treatment programs. Lastly, points were properly assessed under the lack of supervision factor even though that circumstance resulted from defendant’s having fully served his sentence. Moreover, the defendant did not establish any basis for a downward departure.

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