58 N.Y.2d 831 (1983)

A jury instruction that allows a finding of forcible compulsion based on either physical force overcoming earnest resistance or a threat of immediate death or physical injury, when the indictment only charges the former, constitutes reversible error.

Summary

Defendant Thomas was convicted of sodomy in the first degree. The trial court’s charge to the jury regarding the definition of forcible compulsion was erroneous because it allowed the jury to convict if they found either physical force or a threat of immediate harm, while the indictment only alleged physical force. Although the Appellate Division based its decision on the nonretroactivity of the Payton rule, the Court of Appeals modified the order, reversing the conviction and ordering a new trial. The court found that the defendant’s affidavit supporting the motion to suppress was insufficient.

Facts

The defendant was indicted for sodomy in the first degree, charged with forcible compulsion “by means of physical force which overcame earnest resistance.” At trial, the court instructed the jury that the defendant could be found guilty if the jury found either physical force overcoming earnest resistance or a threat placing the victim in fear of immediate death or physical injury.

Procedural History

The defendant was convicted at trial. The Appellate Division reviewed the case and made a decision based on the nonretroactivity of the Payton rule. The case then went to the Court of Appeals.

Issue(s)

1. Whether the trial court erred in its charge to the jury on the definition of forcible compulsion by instructing that the jury could find the defendant guilty based on a threat of immediate death or physical injury, when the indictment only charged forcible compulsion “by means of physical force which overcame earnest resistance”.
2. Whether the Appellate Division’s decision requires reversal, considering their reliance on the nonretroactivity of the Payton rule.

Holding

1. Yes, because the trial court’s instruction broadened the basis for conviction beyond what was alleged in the indictment.
2. No, because although the Appellate Division’s reasoning was erroneous, the defendant’s affidavit in support of the motion to suppress was insufficient as a matter of law.

Court’s Reasoning

The Court of Appeals found that the trial court erred in its charge to the jury regarding the definition of forcible compulsion. The indictment specifically charged forcible compulsion “by means of physical force which overcame earnest resistance” only. However, the court instructed the jury that the defendant could be found guilty if they found either such force or a threat placing the victim in fear of immediate death or physical injury. This broadened the scope of the indictment, allowing the jury to convict on a basis not specifically alleged. The Court cited CPL 710.60, subd 3, par [b] and People v. Grosfeld, 58 N.Y.2d 887, noting the defendant’s affidavit in support of the motion to suppress was insufficient. The court stated that reversal was not required because defendant’s affidavit in support of the motion to suppress was insufficient as a matter of law to support the ground alleged. The court modified the order by reversing the conviction of sodomy in the first degree and ordering a new trial as to the second and third counts of the indictment, and affirmed the remaining portions of the order.