Opinion
June 19, 1967
Judgment of the Supreme Court, Queens County, rendered July 26, 1965, reversed, on the law and the facts and in the interests of justice, and new trial ordered. Defendant was indicted for the crimes of sodomy in the first degree, assault in the second degree (in two counts, one with intent to commit sodomy and the other with intent to commit rape) and impairing the morals of a minor, in violation of section 483 of the Penal Law. Although the testimony with respect to the commission of the crimes charged was to the effect that the crimes of sodomy and rape had been committed, the jury did not convict defendant of the crime of sodomy, but found him guilty of the two assault counts and of impairing the morals of the minor, upon whom the assaults were allegedly committed. The District Attorney properly recommends that the convictions of assault with intent to commit rape and of impairing morals be reversed, because the testimony of the 15 year-old complainant was not corroborated (cf. People v. English, 16 N.Y.2d 719; People v. Lo Verde, 7 N.Y.2d 114) and because it is impossible to determine whether the jury based its conviction of defendant on the morals charge on the testimony with respect to instances involving both rape and sodomy or the instances involving only rape. We agree that the convictions of defendant of the commission of these crimes should be reversed, but we are also of the opinion that his conviction of the crime of assault with intent to commit sodomy should also be reversed, even though the testimony of the complainant, although not corroborated, was legally sufficient, if credited, to sustain the conviction. Defendant's substantial rights were prejudiced on his trial on the sodomy counts by the introduction of evidence of commission of the crime of rape, which was obviously insufficient to support a conviction of assault with intent to commit that crime; and it is impossible to determine the extent to which the jury was influenced by that evidence in arriving at the conclusion that defendant had committed the crime of assault with intent to commit sodomy. That they may have had some doubt as to his guilt is indicated by the fact that he was not found guilty of the crime of sodomy although the evidence, on which he was convicted only of assault, indicated that the crime of sodomy had actually been consummated. The judgment should be reversed, in its entirety, in the interests of justice (cf. People v. Kelly, 12 N.Y.2d 248). Christ, Rabin, Benjamin and Nolan, JJ., concur. Beldock, P.J., concurs in the reversal as to the conviction for assault with intent to commit rape, but dissents as to the convictions for assault with intent to commit sodomy and for violation of section 483 of the Penal Law, and votes to affirm those convictions, with the following memorandum: As stated by the majority, the evidence was legally sufficient to sustain the conviction for assault with intent to commit sodomy. In my opinion, the basic rationale of the Court of Appeals decisions reversing convictions for assault with intent to commit rape where there was testimony of a consummated rape is that such convictions constitute circumvention of the corroboration requirements for rape convictions (see, People v. Lo Verde, 7 N.Y.2d 114). That is not the case here. Since no corroboration is presently required to convict for sodomy in the first degree, a conviction for assault with intent to commit sodomy, notwithstanding testimony as to completed acts of sodomy and rape, does not constitute a circumvention of the corroboration requirements. Under the facts herein, the testimony of completed acts of rape was so interrelated with the testimony tending to prove defendant's guilt of the sodomy charges as to render it impractical to prove one while completely excluding testimony as to the other. The purpose of this testimony was not to show defendant's criminal propensity but was rather evidence of an over-all pattern of sexual abuse by defendant of his 15-year-old stepdaughter over an extended period of time. Defendant should not be permitted to use the fact that testimony was admitted that he committed acts of rape, a charge for which, under the law, he could not be convicted by the evidence available, as a shield to protect him from conviction for crimes which he committed as part of the same course of conduct. This reasoning applies as well to the conviction for endangering the life and health of a child. The jury was entitled to find the defendant guilty of this charge upon the evidence of acts of sodomy.