People v. Pepper, 59 N.Y.2d 353 (1983)

In cases of sodomy and sexual abuse involving child victims, corroborating evidence, even if inconsistent with the victim’s testimony, is sufficient if it tends to establish that an attempt was made to engage the victim in the alleged acts and connects the defendant to the commission of the offense.

Summary

Following a reversal of his initial conviction, the defendant was retried and convicted of sodomy and sexual abuse. The New York Court of Appeals affirmed the conviction, holding that there was sufficient corroboration of the victim’s testimony as required by Penal Law § 130.16. The corroboration was found in the testimony of the victim’s mother, even though she denied that sexual contact took place. The court emphasized that the mother’s testimony about the encounters and arrangements was enough to connect the defendant to the crimes described by the victim. The court also addressed and dismissed the defendant’s claims regarding a change of venue and jury selection.

Facts

The complaining witness, an 11-year-old girl, testified that her mother arranged meetings between her and the defendant, during which she was expected “to do sexual things with him.” These encounters occurred in parking lots, where the defendant engaged in sexual contact with the witness. The witness’s mother received money from the defendant after each meeting.

Procedural History

The defendant was initially convicted based on a guilty plea, which was later overturned by the New York Court of Appeals due to a violation of the defendant’s rights. The case was remitted to the County Court for a new trial. At the second trial, the defendant was convicted of two counts of sodomy in the second degree and two counts of sexual abuse in the second degree. The Appellate Division affirmed his conviction, leading to this appeal to the New York Court of Appeals.

Issue(s)

1. Whether the defendant was improperly denied a change of venue due to pretrial publicity, thus depriving him of a fair trial.
2. Whether the trial court improperly denied the defendant the opportunity to make a challenge for cause out of the hearing of the jury.
3. Whether there was sufficient corroboration of the victim’s testimony as required by section 130.16 of the Penal Law.
4. Whether the indictment charged the alleged incidents with sufficient particularity.

Holding

1. No, because the defendant did not demonstrate that the pretrial publicity prejudiced the jury selection process or that the jurors chosen were anything but impartial.
2. No, because the defendant failed to demonstrate any prejudice as a consequence of the error.
3. Yes, because the testimony of the victim’s mother, though inconsistent with the victim’s testimony, sufficiently connected the defendant to the commission of the offenses described by the victim and tended to establish that an attempt was made to engage the victim in acts of sexual abuse and sodomy.
4. No, because the defendant did not properly preserve this argument for appellate review.

Court’s Reasoning

The Court of Appeals found that the defendant’s motion for a change of venue was properly denied, as he failed to demonstrate that the pretrial publicity prejudiced the jury selection process. The court emphasized that the trial court took precautions to ensure the impartiality of the jurors. Regarding the challenge for cause, the court acknowledged that CPL 270.15 (subd 2) was violated but concluded that the defendant failed to show any prejudice resulting from the error.

The court addressed the corroboration requirement of Penal Law § 130.16, stating that the victim’s mother’s testimony provided sufficient corroboration, despite her denial of sexual contact between the defendant and her daughter. The court reasoned that the mother’s testimony regarding the encounters, arrangements, and details connected the defendant to the commission of the offenses. Specifically, the court pointed to the mother’s testimony regarding the defendant touching her daughter and asking her to kiss his penis, which “tends to establish that an attempt was made to engage the victim in acts of sexual abuse and sodomy.” The court explicitly stated, “The fact that the corroborating witness’s testimony is inconsistent with the victim’s does not, on this record, undermine the corroborative value of the evidence.”

Finally, the court found that the defendant’s argument regarding the indictment’s lack of particularity was not preserved for review. The court noted that the defendant failed to raise this concern in his pretrial motions and only raised it orally just before jury selection, rendering the denial of his request proper.