Opinion
March 18, 1974
Appeal by defendant from a judgment of the County Court, Putnam County, rendered February 5, 1973, convicting him of sodomy in the first degree, sexual abuse in the third degree and possession of a dangerous weapon as a felony, after a nonjury trial, and imposing sentence. Judgment reversed, on the law, and indictment dismissed. The People failed to prove by independent corroborative evidence that defendant was the alleged assailant of the complainant (Penal Law, § 130.15; People v. Linzy, 31 N.Y.2d 99, 101; People v. Sigismondi, 21 N.Y.2d 186). On the facts in this case the sexual abuse count must also fall for lack of corroboration ( People v. Doyle, 31 A.D.2d 490, affd. 26 N.Y.2d 752; Matter of Byron D., 36 A.D.2d 742). Gulotta, P.J., Hopkins, Brennan and Munder, JJ., concur; Martuscello, J., concurs in the reversal and dismissal as to the counts of sodomy and possession of a dangerous weapon, but otherwise dissents and votes to affirm as to the conviction and sentence for sexual abuse in the third degree.