New York Law Review

Tag: Attempted Sexual Abuse

  • People v. Cecunjanin, 15 N.Y.3d 487 (2010): Attempted Sexual Abuse Requires Victim’s Helplessness at Time of Attempt

    People v. Cecunjanin, 15 N.Y.3d 487 (2010)

    To be convicted of attempted sexual abuse of a physically helpless person, the prosecution must prove the victim was physically helpless at the specific moment the defendant attempted to commit the sexual contact.

    Summary

    Defendant was convicted of attempted sexual abuse in the first degree and unlawful imprisonment after an incident involving an intoxicated woman at his bar. The Court of Appeals reversed the attempted sexual abuse conviction, finding insufficient evidence that the woman was physically helpless at the moment the defendant allegedly attempted to subject her to sexual contact. While the woman was highly intoxicated and possibly helpless at times, the evidence showed she resisted the defendant’s advances, indicating she was not physically helpless during those specific moments. The Court affirmed the unlawful imprisonment conviction.

    Facts

    Catherine, the alleged victim, became extremely intoxicated at a bar owned by the defendant, Cecunjanin. Her blood alcohol content was .267%. While at the bar, she engaged in some mild displays of affection with Cecunjanin, whom she knew. As Catherine’s intoxication increased, Cecunjanin became more aggressive, making rude comments, preventing her from leaving, tugging at her shirt, and touching her thighs. He led her to a storage room with another man, where they pulled at her clothes and tried to kiss her. Catherine resisted, refusing to go upstairs with them and sitting on the floor. At one point, she was unable to open the storage room door. Cecunjanin prevented her from answering her cell phone. The encounter ended when Catherine’s father arrived.

    Procedural History

    Cecunjanin was indicted for attempted sexual abuse in the first degree, unlawful imprisonment in the second degree, and forcible touching. The jury convicted him on the first two counts. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the evidence presented at trial was sufficient to prove beyond a reasonable doubt that Catherine was “physically helpless” at the moment Cecunjanin attempted to subject her to sexual contact, as required for a conviction of attempted sexual abuse in the first degree under Penal Law § 130.65(2).

    Holding

    No, because the evidence showed that while Catherine may have been physically helpless at some points, she was able to resist Cecunjanin’s advances, proving she was not physically helpless during the specific moments of the alleged attempted sexual contact.

    Court’s Reasoning

    The Court focused on the statutory definition of “physically helpless” as “unconscious or for any other reason is physically unable to communicate unwillingness to an act” (Penal Law § 130.00 [7]). The Court acknowledged Catherine’s extreme intoxication and the testimony of her friends indicating she was slouched, unresponsive, and at one point, slid off her stool. However, the Court found no evidence that Cecunjanin attempted to subject her to sexual contact during those specific moments of helplessness. The Court highlighted Catherine’s testimony that she held her arms up to block Cecunjanin from putting his hands under her shirt, stating, “The argument is self-refuting; she could not have blocked him if she were helpless.” The Court distinguished this case from People v. Teicher, 52 NY2d 638 (1981), where the victim was weakened by sedation but still able to remove her hand from the defendant’s person. In Teicher, the court inferred a lack of capacity to consent to the initial touching due to her weakened condition. Here, the Court emphasized that Catherine actively resisted Cecunjanin’s attempts, demonstrating that she was not physically helpless at the time of the attempted contact. The court stated, “A reading of the record as a whole shows that Catherine may well have been physically helpless at some times, and that defendant may have attempted to subject her to sexual contact at other times, but there is no evidence that the two occurred together.” The Court affirmed the Appellate Division with the modification to vacate the conviction for attempted sexual abuse.

  • In re Carlos V., 76 N.Y.2d 792 (1990): Establishing Proof Standards for Attempted Sexual Abuse in Juvenile Delinquency Cases

    In re Carlos V., 76 N.Y.2d 792 (1990)

    In juvenile delinquency proceedings alleging acts that would constitute attempted sexual abuse if committed by an adult, proof of force alone is insufficient; there must also be evidence of an attempt to subject the victim to sexual contact.

    Summary

    This case concerns a juvenile delinquency proceeding where the Family Court found that a 12-year-old, Carlos V., committed acts constituting unlawful imprisonment and attempted sexual abuse against a 5-year-old. The Court of Appeals affirmed the finding of unlawful imprisonment but reversed the finding of attempted sexual abuse. While the presentment agency proved the use of force, it failed to provide sufficient evidence that Carlos V. attempted to subject the child to sexual contact, a necessary element for attempted sexual abuse. The court emphasized that proof of force alone does not establish an attempt to commit a sexual offense.

    Facts

    A witness heard screaming from above the fourth floor of a building. Shortly after, she observed Carlos V., a 12-year-old, pulling Amanda, a 5-year-old, down the stairs. Amanda sustained a bruise on her forearm and scratches on her neck. Her overalls were also damaged. Carlos V. did not have permission from Amanda’s mother to interact with her in this manner.

    Procedural History

    The Family Court, New York County, adjudicated Carlos V. a juvenile delinquent based on findings that he committed acts which, if committed by an adult, would constitute unlawful imprisonment in the second degree and attempted sexual abuse in the first degree. The Appellate Division affirmed. The Court of Appeals reviewed the Appellate Division’s order.

    Issue(s)

    1. Whether the evidence was sufficient to support the Family Court’s finding that Carlos V. committed acts which, if committed by an adult, would constitute unlawful imprisonment in the second degree.
    2. Whether the evidence was sufficient to support the Family Court’s finding that Carlos V. committed acts which, if committed by an adult, would constitute attempted sexual abuse in the first degree.

    Holding

    1. Yes, because a witness testified to hearing screaming and then seeing the appellant pull the child down the stairs, which supported the inference of force causing injuries and damage to the child’s clothing, and the appellant was aware his actions were unlawful.
    2. No, because while the presentment agency proved the use of force, there was no evidence that Carlos V. attempted to subject Amanda to sexual contact, a necessary element for attempted sexual abuse.

    Court’s Reasoning

    The Court of Appeals found sufficient evidence to support the unlawful imprisonment charge based on the witness testimony and the inference of force causing injury. However, the court found insufficient evidence to support the attempted sexual abuse charge. The court emphasized that under Penal Law §§ 110.00 and 130.65[1], attempted sexual abuse requires proof of an attempt to subject the victim to sexual contact as defined in Penal Law § 130.00[3]. The medical examination revealed no evidence of sexual contact. The Family Court found Amanda incompetent to testify and deemed the pubic hair evidence unreliable. The damaged overalls only proved unlawful restraint, not an attempt to engage in sexual contact. The court stated, “Although the presentment agency was not obligated to prove a completed crime, and although the agency did prove use of force, there is no evidence that appellant attempted to subject Amanda to sexual contact.” This case highlights the necessity of proving all elements of a crime, even in juvenile delinquency proceedings, and clarifies that force alone is insufficient to establish attempted sexual abuse; an attempt to engage in sexual contact must also be proven.

  • In re David H., 69 N.Y.2d 792 (1987): Sufficiency of Evidence in Juvenile Delinquency Cases

    In re David H., 69 N.Y.2d 792 (1987)

    In juvenile delinquency proceedings, a finding must be supported by sufficient evidence demonstrating that the juvenile committed acts that, if committed by an adult, would constitute a crime.

    Summary

    This case concerns a juvenile delinquency proceeding where the Family Court found that a 12-year-old committed acts constituting unlawful imprisonment and attempted sexual abuse. The Court of Appeals affirmed the finding of unlawful imprisonment but reversed the finding of attempted sexual abuse due to insufficient evidence. The Court held that while the agency proved the use of force, it failed to provide sufficient evidence that the appellant attempted to subject the victim to sexual contact. This case highlights the importance of presenting adequate evidence to support each element of the alleged offense in juvenile delinquency cases.

    Facts

    A witness heard screaming from the floor above her apartment. Shortly thereafter, she observed David H., a 12-year-old, pulling a five-year-old girl, Amanda, down the stairs. Amanda had a bruise on her forearm and scratches on her neck. Her overalls were damaged. Amanda’s mother had not given David permission to interact with her child.

    Procedural History

    The Family Court found that David H. committed acts which, if committed by an adult, would constitute unlawful imprisonment in the second degree and attempted sexual abuse in the first degree. The Appellate Division affirmed. David H. appealed to the Court of Appeals.

    Issue(s)

    1. Whether there was sufficient evidence to support the Family Court’s finding that appellant committed acts which, if committed by an adult, would constitute unlawful imprisonment in the second degree?

    2. Whether there was sufficient evidence to support the Family Court’s finding that appellant committed acts which, if committed by an adult, would constitute attempted sexual abuse in the first degree?

    Holding

    1. Yes, because there was evidence that the appellant forcibly restrained the child without permission.

    2. No, because there was no evidence that appellant attempted to subject the victim to sexual contact.

    Court’s Reasoning

    Regarding unlawful imprisonment, the court found sufficient evidence based on witness testimony that the appellant pulled the child down the stairs, causing injuries and damage to her clothing, without permission. The court inferred force was used, supporting the unlawful imprisonment charge.

    Regarding attempted sexual abuse, the court found insufficient evidence. The presentment agency needed to prove that appellant attempted to subject Amanda to sexual contact. Medical examination revealed no evidence of sexual contact. Amanda was deemed incompetent to testify. The court found the pubic hair evidence unreliable. The court stated, “Finally, the child’s overalls — though dirty and damaged — proved only that appellant unlawfully restrained Amanda, not that he attempted to engage in any sexual contact.” The Court emphasized that while a completed crime need not be proven, some evidence of attempted sexual contact was required, which was lacking in this case. Because the evidence only supported unlawful restraint, the appellate court reversed the lower court’s ruling on attempted sexual abuse.

  • People v. Wheeler, 67 N.Y.2d 960 (1986): Defining Lesser Included Offenses in New York Criminal Law

    People v. Wheeler, 67 N.Y.2d 960 (1986)

    A crime is only a lesser included offense if it is impossible to commit the greater offense without also committing the lesser offense.

    Summary

    The New York Court of Appeals affirmed the lower court’s decision, holding that attempted sexual abuse in the first degree is not a lesser included offense of attempted rape in the first degree. The court reasoned that it is possible to commit attempted rape without necessarily having the specific intent to gratify sexual desire, which is a required element of sexual abuse. Therefore, because it is not impossible to commit the greater offense (attempted rape) without committing the lesser offense (attempted sexual abuse), the defendant’s request for a jury instruction on the lesser charge was properly denied.

    Facts

    The defendant was indicted for attempted rape in the first degree. At trial, the defendant requested that the court also submit to the jury the charge of attempted sexual abuse in the first degree as a lesser included offense. The trial court denied this request.

    Procedural History

    The trial court refused the defendant’s request to charge the jury on attempted sexual abuse as a lesser included offense. The Appellate Division affirmed this decision. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether attempted sexual abuse in the first degree is a lesser included offense of attempted rape in the first degree, such that the trial court was required to instruct the jury on the lesser charge.

    Holding

    No, because it is not impossible to commit attempted rape in the first degree without also committing attempted sexual abuse in the first degree.

    Court’s Reasoning

    The Court of Appeals based its decision on the statutory definitions of rape and sexual abuse. Rape in the first degree, under Penal Law § 130.35, requires “sexual intercourse with a female * * * by forcible compulsion.” Sexual intercourse, under Penal Law § 130.00(1), “has its ordinary meaning and occurs upon any penetration, however slight.” Sexual abuse in the first degree, under Penal Law § 130.65(1), requires subjecting “another person to sexual contact * * * by forcible compulsion.” Sexual contact, under Penal Law § 130.00(3), is “any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party.”

    The court emphasized the element of intent: while rape requires only penetration, however slight, sexual abuse requires the specific intent of gratifying sexual desire. The court stated: “Although it would be impossible to commit the crime of rape without ‘touching of the sexual or other intimate parts’ of the victim, it is, of course, possible to commit rape without the actor having as his purpose the gratification of either party’s sexual desire.”

    The court further noted that nonsexual motives for rape, such as a desire to humiliate, injure, or dominate the victim, have been recognized. Because the “impossibility” test for a lesser included offense was not met, the trial court properly refused to submit the charge of attempted sexual abuse to the jury.