Opinion
December 21, 1970
Appeal from a judgment of the County Court of Rensselaer County, rendered February 6, 1970, upon a jury verdict convicting defendant of the crime of sodomy in the first degree, in violation of subdivision 3 of section 130.50 Penal of the Penal Law. The indictment charged defendant with engaging in deviate sexual intercourse with an infant girl, eight years of age, on October 3, 1968. (Penal Law, § 130.50, subd. 3.) The complainant testified that she was playing in the church yard with young friends; that defendant appeared in the church door wearing vestments and summoned her to the church to "come in and do him a favor"; and that she entered the church, and on two different occasions he engaged in an act of deviate sexual intercourse with her. Complainant's brother testified that he was playing in the parking lot of the church when defendant, dressed in a priest's robe, called him and asked him to do him a favor which he refused because he was afraid. Shortly thereafter, the complainant came to the church lot, and her brother observed her enter the church with defendant. A few minutes later her brother entered the church and found his sister crying. Complainant told her brother what defendant had done and he went home and told his older brothers who went back to the church and took defendant into custody. Complainant's mother phoned the village police chief who went directly to the church and found defendant in the vicinity of the church under the control of complainant's brothers. Defendant admitted to the police investigating the charge that he had been in the church building, but claimed he was innocent of the crime. To sustain charges of sexual offenses punishable under article 130 of the Penal Law corroborating testimony of the complainant is required (Penal Law, § 130.15), and the statutory requirements of corroboration must extend to every material fact essential to constitute the crime. ( People v. Radunovic, 21 N.Y.2d 186.) The prosecution here had the burden to prove beyond a reasonable doubt that defendant be positively identified as the perpetrator of the act; that he committed an act of deviate sexual intercourse; and that the victim was less than 11 years of age. The testimony of the complainant and other witnesses clearly identified defendant as the alleged perpetrator of the act complained of. The age of the complainant was also clearly established by her testimony, and that of her older brother that she was nine years old at the time of the trial, and thus under 11 years of age at the time of the alleged crime. (Penal Law, § 130.50, subd. 3.) The complainant also testified to the facts of the repulsive acts which constituted deviate sexual intercourse in clear and explicit language. The testimony of complainant, her brother, and her girl friend of the presence of defendant in the church, his summons to complainant to join him, her immediate emotional reaction and her report of the incident to her brothers, when taken as a whole, are sufficient corroboration of complainant's story. Circumstantial evidence of corroboration is sufficient if it affords proof of circumstances legitimately tending to show the existence of the material facts of the crime. ( People v. Masse, 5 N.Y.2d 217; People v. Dow, 34 A.D.2d 224.) The determination by the trial court that the infant witnesses, aged 9, 10 and 11 understood the nature of an oath, and allowed them to be sworn, is supported by the voir dire conducted to determine the competency of the infants to be sworn as witnesses. Judgment affirmed. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.