Opinion
July 23, 1973
Appeal by the People from a trial order of dismissal of the County Court, Westchester County, made on April 25, 1972, at the close of the People's case upon a jury trial. The indictment had charged defendant with rape in the first degree, assault in the second degree (two counts) and unlawful imprisonment. Order reversed, on the law, indictment reinstated, and new trial ordered. The appeal did not present questions of fact. The complainant identified defendant as the man who had raped her and testified that in the course of the incident he struck her over the head with a bottle, causing lacerations and bleeding. She had intentionally placed blood from her wound on portions of the assailant's vehicle. She further testified that she was raped on the back seat, with her head on the right-hand side of the car. A search of defendant's automobile revealed numerous type "O" blood stains; and hair strands were found on the back seat, where the complainant testified her head had rested. After being subjected to scientific examination, the blood and hair samples were found to be compatible with their having come from the complainant. In our opinion this is sufficient to predicate a finding that the rape took place in defendant's car and thus to corroborate his identity as the rapist (cf. People v. Linzy, 31 N.Y.2d 99). Hopkins, Acting P.J., Munder, Martuscello, Gulotta and Christ, JJ., concur.