Opinion
May 6, 1965
Upon this appeal from a judgment of the County Court of Chemung County, rendered upon a verdict, convicting defendant of the crime of carnal abuse of a child (Penal Law, § 483-a), the only proof offered by the prosecution to establish defendant's guilt consisted of defendant's alleged confession and the testimony of the complaining witness, a seven-year-old girl. Her testimony was merely that defendant "touched" her once, but where was shown, in the language of the trial transcript, by "indicating"; and since the record does not disclose nor even suggest the part of her body so indicated, the confession stood alone and her testimony did not constitute the "additional proof that the crime charged [had] been committed", which is prerequisite to conviction. (Code Crim. Pro., § 395; People v. Belcher, 299 N.Y. 321.) Upon the basis of evidence developed upon the trial, defendant moved to dismiss the indictment on the ground that the mother of the complaining witness was present before the Grand Jury when the witness testified. The indictment should have been set aside. (Code Crim. Pro., § 313, subd. 2; People v. Minet, 296 N.Y. 315; People v. La Brecque, 198 Misc. 470.) Judgment reversed, on the law and the facts, and indictment dismissed. Settle order on notice. Gibson, P.J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.