Opinion
Argued April 25, 1972
Decided July 7, 1972
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, ROSS A. PATANE, J.
Alan S. Philips, Louis J. Cassella and Peter L. Yellin for appellant.
Patrick D. Monserrate, District Attorney ( Stephen E. Powers of counsel), for respondent.
The order appealed from should be reversed and the order of the County Court, dismissing the indictment, reinstated.
By statutory mandate independent corroboration of the testimony of the complaining witness is required to sustain charges involving sex offenses prosecuted under article 130 of the Penal Law, with the limited exception of prosecutions for sexual abuse in the third degree (Penal Law, § 130.15; see, also, People v. Linzy, 31 N.Y.2d 99, decided herewith; People v. Radunovic, 21 N.Y.2d 186). Corroboration must extend to every material element of the crime ( People v. Radunovic, 21 N.Y.2d 186, supra; People v. Bravender, 35 A.D.2d 1035), and must be of the same character and quality as required to sustain a conviction for rape under section 2013 of the former Penal Law (see Practice Commentary, Denzer and McQuillan, McKinney's Cons. Laws of N.Y., Book 39, Penal Law, § 130.15; Legis. Bull. No. 28 [1971] Assoc. of the Bar, City of New York).
Here the indictment, founded upon the unusually credible testimony of the complaining witness, charged the defendant with sodomy in the third degree and sexual abuse in the first degree (see Penal Law, § 130.40, 130.65). To be sure, the testimony of one eyewitness places the defendant with the complainant in a local department store shortly before the acts complained of and is amply corroborative of the boy's story that the defendant was then engaged in some ploy calculated at detaining him without cause. Though we agree that when taken as a whole this testimony was corroborative of some connection between the defendant and the complaining witness, and under ordinary circumstances would establish guilt beyond a reasonable doubt, there is simply no corroboration of a defined sexual transaction or of forcible compulsion essential to sustain a conviction on the charges appearing in the indictment.
Prosecutions of this sort do, indeed, present special problems and because medical confirmation of the act itself is rare, convictions are unlikely. In the face of the evidence before us, any rule which would serve to frustrate the prosecution of such offenses must be drawn into serious question ( People v. Linzy, 31 N.Y.2d 99, supra, decided herewith).
The court is bound, naturally, by the direction of the Legislature that no person shall be convicted of any of the crimes described as "sex offenses" within article 130 of the Penal Law "solely on the uncorroborated testimony of the alleged victim" (Penal Law, § 130.15). The need for corroboration which had applied to rape (former Penal Law, § 2013) and certain other offenses against women now attaches to a number of offenses within article 130 not involving women, of which this present prosecution for sodomy and sexual abuse, first degree, involving a 15-year-old boy is one (Penal Law, § 130.40, 130.65).
It is no longer possible to say, as it could have been under the former Penal Law, that corroboration is unnecessary. But what is an acceptable quality of proof to constitute corroboration remains a judicial question and the new Penal Law has not changed that. Circumstantial evidence has long been accepted in support of corroboration of rape ( People v. Dow, 34 A.D.2d 224; People v. Duegaw, 34 A.D.2d 1043; People v. Elston, 186 App. Div. 224; People v. De Nigris, 157 App. Div. 798). But physical results which often follow rape are rare in certain other sexual offenses, especially sexual abuse of a boy by a man which is the basis of one of the charges here.
The quality of corroboration, therefore, is a matter intrinsic to the crime. The Legislature could not possibly have meant to impose the impassable barrier to prosecution of a need to produce an eyewitness to the event. The rest is a judicial question as to the reliability of the circumstantial proof.
Here there was no witness who saw the act, but the boy's testimony of events immediately before and after the act, and identifying defendant with those events and connecting him with the boy is corroborated. The independent proof shows coercive methods employed by defendant before the act to get the boy to accompany him and the distraught complaint of the boy in an effort to call the police immediately after. This kind of corroborative circumstance gives real and not imagined support to the complainant and is as good as a prosecution is likely ever to get for such an offense. The Legislature did not mean to equate frustration of prosecution with corroboration.
The opinion in People v. Radunovic ( 21 N.Y.2d 186), on which the majority relies, was not the opinion of the court. Not any of the five opinions in that case commanded the support of four Judges. And People v. Bravender ( 35 A.D.2d 1035), on which the majority also relies, was a circumstantial case, stronger, possibly, than the proof here, but not much. There was there no direct evidence of the act. The difference is a matter of degree. People v. Linzy ( 31 N.Y.2d 99, decided herewith) is distinguishable in the complete absence there of independent proof of identity of the assailant.
The order of the Appellate Division should be affirmed.
On this appeal, we are asked to determine whether the People put forward before the Grand Jury sufficient evidence to "warrant a conviction by the trial jury" of the crimes of sodomy in the third degree and sexual abuse in the first degree. (Code Crim. Pro., § 251; People v. Haney, 30 N.Y.2d 328; People v. Howell, 3 N.Y.2d 672.) In my opinion, the question must be answered in the affirmative, and, accordingly, I would affirm the order reinstating the indictment.
The Grand Jury in this case heard the testimony not only of the young boy complainant, but also of two other witnesses. James Buckland, an employee at the Hess gas station which was near the river front where the alleged encounter between the boy and the defendant occurred, testified that the boy ran into the station and asked if he could borrow a dime to call the police, and informed him of the attack. Buckland testified the boy was "shook up, nervous and stuff". Another witness, Harold Dennis, testified that on the same day he observed the defendant and the young boy together in the store where he was employed. Dennis further stated that he overheard part of the defendant's telephone conversation. For instance, the defendant said he was "from the Bond Security Company" and asked the other party if they were "missing anything over there", and that "I have some coins here". At the conclusion of the call, the witness said that the defendant and the boy walked out of an entrance way that led into an alley, and the "boy seemed to be arguing he didn't do it, and I mean he kept his hand on the shoulder and pushed him out this back entrance."
In my opinion Dennis' testimony was sufficient to satisfy the third element of the corroboration requirement — i.e., defendant's identity as the assailant. While it is true that the complainant's prompt disclosure of the sexual attack is not "`other evidence' * * * within the meaning of the statute" to satisfy the other element that a sexual attack did occur ( People v. Page, 162 N.Y. 272, 276; and see People v. Carey, 223 N.Y. 519; People v. Murray, 183 App. Div. 468), it seems to me that the complainant's outcry to the gas station attendant, together with his distraught appearance and conduct, and apparent reluctance to leave the store with the defendant, sufficiently corroborate the sordid incident. Certainly, such evidence renders less likely the possibility that the complainant was making a false accusation and, thus, comports with the underlying rationale of the corroboration requirement.
Accordingly, I would affirm.
Chief Judge FULD and Judges SCILEPPI, BREITEL and GIBSON concur in Per Curiam opinion; Judge BURKE concurs on constraint of People v. Linzy, decided herewith; Judges BERGAN and JASEN dissent and vote to affirm in separate opinions.
Order reversed and the order of the County Court reinstated.