The respondent in this case is the People of the State of New York. The appellant in the case is Carl Smith. The People of the State of New York are represented Richard A. Brown, District Attorney of Kew Gardens office with Gary Fidel for counsel. The appellant is represented by the offices of Hyman J. Greenberg, Forest Hills, with Joseph DiBlasi for counsel. This case is being heard in the Supreme Court of the State of New York, Second Department, Appellate Division. The judges hearing the case are Bracken, J.P., Ritter, O’Brien, and Copertino, JJ.
This is a case for appeal by the defendant. The original order was made in the Supreme Court of Queens County on the second of January, 1990. Judge Beerman made the original order. The defendant was convicted of sodomy in the first degree, rape in the first degree, and endangering the welfare of a child upon a verdict by a jury and the imposing sentence.
The defendant was indicted with two counts of rape in the first degree. The two counts of rape in the first degree were identical and charged the defendant of engaging in sexual intercourse with the complainant. It is stated that the incident occurred between October 13 and 14, 1988.
The complainant testified during the trial that she was raped repeatedly by the defendant starting in the evening of the 13th of October through the morning of October 14th.
The defendant was acquitted by the jury for the first count of rape in the first degree and convicted him with the second charge of rape in the first degree.
The rape counts that were made in the indictment were not linked in any matter. There is no meaningful appellate review of the sufficiency of the evidence to support the conviction of the defendant for the second count of the indictment.
Case Discussion and Decision
Convicting the defendant of the second count is impossible without the risk of double jeopardy, or charging the defendant with the same crime twice. For this reason the conviction for rape in the first degree on the second charge must be reversed and the second count of rape on the indictment must be dismissed.
The contention made by the defendant that the trial court was in error by refusing him to be charged with sexual misconduct as a lesser offense includes the charge of sodomy in the first degree. We find that this argument is insufficient and deny this motion made by the defendant.
The court has also considered the request made by the defendant to unseal the order made by the Supreme Court that granted the victim in the case special witness status. This order was made by the Supreme Court of Queens County and dated the 21st of October, 1988. The order also seals the exhibits supporting the evidence as well as moving papers. The court has declined this request as well.
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