Opinion
February 11, 1971
Appeal from a judgment of the County Court, Cortland County, rendered April 29, 1970, convicting defendant of the crime of rape in the first degree. Defendant having been indicted for the crimes of rape in the first degree and carnal abuse, was convicted, after a jury trial, of rape, first degree, and sentenced to a term of one day to life. On April 25, 1966 at about 5:45 P.M., the victim, age 3, was found missing from her home. A search was made and she was discovered crying, sometime before 8:10 P.M. by some neighborhood boys and returned home. There is ample evidence in the record, both physical and medical, to establish the fact that this young girl had been raped. The prosecution, however, had the burden to prove beyond a reasonable doubt that a rape had been committed and also that defendant was the perpetrator. It is defendant's contention that on this record there is insufficient evidence to convict him of the crime of rape. On the issue of defendant's complicity the People produced evidence that the victim was approached by a man on a bicycle and that she went with him on his bicycle; that defendant was seen in the vicinity shortly after 6:00 P.M. riding a bicycle; that he got off the bicycle, led it down the sidewalk and leaned it against a tree; and that a little girl, 3 or 4 years of age was riding a tricycle on the same sidewalk about 10 feet away. Evidence was also produced that defendant had been drinking in a grill during the day; that he had left the grill between 5:00 and 6:00 P.M., riding his bicycle; that when he returned between 8:00 and 9:00 P.M. he was excited and there was mud on his pant's legs. The defendant's brother testified that on May 6, 1966 he went to the police station where defendant was in custody; that he knew defendant was charged with rape; that he met him on the landing going downstairs while he was accompanied by a police officer and asked his brother "if it were true"; that defendant shook his head in an up and down fashion. Also significant is the fact that the defendant, in reply to an inquiry by the court, admitted that he heard his brother testify and the brother was telling the truth. Furthermore, the police officer testified that the defendant "did affirm that he had done it". While much of the proof linking defendant to the crime is circumstantial, this does not render the verdict defective ( People v. Harris, 306 N.Y. 345, 351; People v. Taddio, 292 N.Y. 488), so long as the facts from which the inferences are to be drawn are established by direct proof. ( People v. Blake, 5 N.Y.2d 118, 119.) There was, in our opinion, sufficient direct proof of material facts from which the jury could reasonably and logically infer that defendant was the guilty party. The prosecution, moreover, did not rely solely on this circumstantial evidence. It was supported by the testimony of defendant's brother and the police officer. The court correctly pointed out in its charge to the jury that the weight to be attached to this testimony under all the circumstances was for them to determine. It also carefully explained the rule as to credibility, specifically mentioning that rule in relation to a police officer. The court properly charged the jury on the various elements of the crimes charged in the indictment and with all the necessary legal principles applicable to the proof and required under the circumstances. It is significant that defendant took no exceptions to the charge, nor made any requests. While the defendant took the stand and answered in the negative questions containing the formal language of the two charges of the indictment, he did not deny that he was in the vicinity at the time of the alleged crime, nor did he give any explanation as to where he was or what he was doing on April 25, 1966, although he admitted he remembered. In any event, his veracity was for the jury to pass upon. From an analysis of the record in its entirety, we conclude there is ample evidence to justify the jury's verdict of guilty. In People v. Terwilliger (74 Hun 310, affd. on opinion below, 142 N.Y. 629) it was held that "the evidence was sufficient both to justify sending the case to the jury and to support a conviction for rape where there was competent medical proof of the commission of the rape, immediate disclosure, and testimony as to the opportunity of the defendant in that he was seen in the presence of the complainant near the scene of the rape." ( People v. Masse, 5 N.Y.2d 217, 221-22.) We find no merit in the other issues raised by the defendant. Judgment affirmed. Herlihy, P.J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.