Summary
holding evidence was legally sufficient to establish forcible compulsion when the victim repeatedly attempted to push away defendant, who "used his superior physical strength and an implied threat of harm to rape, sodomize, and sexually abuse" the victim
Summary of this case from Stevens v. DonelliOpinion
November 28, 1994
Appeal from the County Court, Orange County (Berry, J.).
Ordered that the order is reversed insofar as appealed from, on the law, and that branch of the defendant's omnibus motion which was to dismiss the first, third, and fifth counts of the indictment is denied.
The People contend that the evidence presented to the Grand Jury was legally sufficient to establish that the defendant used forcible compulsion to rape, sodomize, and sexually abuse the complainant, and that the County Court therefore erred in reducing counts one, three, and five of the indictment. We agree. In the context of a Grand Jury proceeding, the sufficiency of the People's presentation is determined by inquiring into whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury (see, People v. Jennings, 69 N.Y.2d 103, 114; People v Pelchat, 62 N.Y.2d 97, 105; see also, People v. Oreckinto, 178 A.D.2d 562). When viewed in such a light, the complainant's testimony demonstrated that the defendant used his superior physical strength and an implied threat of harm to rape, sodomize, and sexually abuse the complainant, who repeatedly attempted to push him away. Accordingly, the evidence presented to the Grand Jury was legally sufficient to establish the element of forcible compulsion (see, Penal Law § 130.00; People v Hodges, 204 A.D.2d 739; People v. Roman, 179 A.D.2d 352; People v Kellar, 174 A.D.2d 848; People v. Rugg, 141 A.D.2d 925). Miller, J.P., O'Brien, Joy and Krausman, JJ., concur.