Opinion
January 27, 1947.
Judgment of the County Court of Queens County convicting the defendant of the crime of sodomy, reversed on the law and a new trial ordered. The findings of fact implicit in the verdict of the jury are affirmed. The ruling by the trial court, as a matter of law, that the complaining witness was not an accomplice was erroneous. Whether he was an accomplice or not depended upon whether there was a voluntary submission to the act on his part, and this was a question of fact for the jury. If the complainant was a willing participant, there could be no conviction of the defendant unless there was evidence corroborating the testimony of the complainant. If the complainant was a victim, then there could be a conviction without such corroboration if the complainant's story were credited. ( People v. Rosenthal, 289 N.Y. 482, 484; People v. Sileo, 202 App. Div. 760; People v. LaCasse, 266 App. Div. 888.) The reference to "juvenile delinquency" in section 2186 of the Penal Law has a limited purpose and effect. ( People v. Pollack, 154 App. Div. 716, 719, 721.) Lewis, P.J., Hagarty, Carswell, Adel and Nolan, JJ., concur.