Opinion
July 13, 1990
Appeal from the Cattaraugus County Court, Sprague, J.
Present — Dillon, P.J., Callahan, Doerr, Pine and Lawton, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: On appeal from a judgment convicting him of first and third degree rape and incest, defendant argues that the proof of rape in the first degree was legally insufficient because there was no proof of forcible compulsion. We agree. Although defendant's daughter, the complainant, testified that defendant threatened her the day after the incident, threats made after the sexual act do not constitute forcible compulsion (see, People v. Sirno, 151 A.D.2d 621, appeal dismissed 75 N.Y.2d 809, mot to vacate order dismissing appeal granted 75 N.Y.2d 915). Furthermore, there was no proof that the difference in size between defendant and his daughter created an implied threat of force (cf., People v Yeaden, 156 A.D.2d 208, lv denied 75 N.Y.2d 872), and the People did not advance the theory, either in their bill of particulars or at trial, nor did the court charge the jury, that forcible compulsion could be established through a pattern of prior abuse (cf., People v. Thompson, 158 A.D.2d 563). Thus, the conviction of rape in the first degree must be reversed, the sentence thereon vacated, and that count dismissed.
We have examined defendant's remaining arguments on appeal and find them lacking in merit.