From Casetext: Smarter Legal Research

People v. Howard

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 13, 1990
163 A.D.2d 846 (N.Y. App. Div. 1990)

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.


Summaries of

People v. Howard

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 13, 1990
163 A.D.2d 846 (N.Y. App. Div. 1990)
Case details for

People v. Howard

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RICHARD HOWARD…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jul 13, 1990

Citations

163 A.D.2d 846 (N.Y. App. Div. 1990)
558 N.Y.S.2d 376

Citing Cases

People v. O'Donnell

Here, the trial evidence established that defendant physically abused the victim on two different occasions,…

People v. O'Donnell

Here, the trial evidence established that defendant physically abused the victim on two different occasions,…