New York Law Review

Tag: Sodomy

  • People v. Ford, 69 N.Y.2d 870 (1987): Sexual Abuse as a Lesser Included Offense of Sodomy

    People v. Ford, 69 N.Y.2d 870 (1987)

    Sexual abuse in the first degree is not a lesser included offense of first-degree sodomy because it is possible to commit sodomy without the actor necessarily intending to gratify sexual desire, which is an element of sexual abuse.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order, holding that sexual abuse in the first degree is not a lesser included offense of first-degree sodomy. The court reasoned that sodomy can be committed without the specific intent of sexual gratification, an element required for sexual abuse. Therefore, it is possible to commit sodomy without simultaneously committing sexual abuse. The court emphasized that the jury could properly convict the defendant of both crimes based on the same conduct, as the trial court was not required to submit the charges in the alternative.

    Facts

    The defendant was convicted of both first-degree sodomy and first-degree sexual abuse based on the same conduct. The specific details of the conduct are not provided in the opinion but are assumed to involve acts that could potentially constitute both crimes.

    Procedural History

    The trial court allowed the jury to convict the defendant of both first-degree sodomy and first-degree sexual abuse. The defendant appealed, arguing that sexual abuse is a lesser included offense of sodomy, and therefore, a conviction on both counts for the same conduct was improper. The Appellate Division affirmed the trial court’s decision. The New York Court of Appeals then reviewed the Appellate Division’s order.

    Issue(s)

    Whether sexual abuse in the first degree is a lesser included offense of first-degree sodomy, such that a defendant cannot be convicted of both crimes based on the same conduct.

    Holding

    No, because it is possible to commit the crime of sodomy without, by the same conduct, necessarily committing the crime of sexual abuse, as sodomy does not require the element of sexual gratification, which is required for sexual abuse.

    Court’s Reasoning

    The Court of Appeals based its reasoning on the statutory definitions of sodomy and sexual abuse, referencing Penal Law § 130.65 and § 130.50. The court applied the “impossibility test” derived from CPL 1.20 [37] and People v. Glover, 57 NY2d 61, which dictates that a crime is only a lesser included offense if it is impossible to commit the greater offense without also committing the lesser offense. The court highlighted that sexual abuse requires “sexual contact,” which is defined in Penal Law § 130.00 [3] as “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 reasoned that because sodomy, as established in People v. Wheeler, 67 NY2d 960, can be committed without the actor having the purpose of sexual gratification, it is possible to commit sodomy without also committing sexual abuse. Therefore, the trial court was not required to submit the charges in the alternative, and the jury’s conviction on both counts was proper under CPL 300.40 [3]. The court concluded, “The trial court thus was not required to submit these charges in the alternative, and the jury could properly convict the defendant of both crimes based on the same conduct (CPL 300.40 [3]).” The court’s decision turns on a strict interpretation of the elements of each crime and the requirement that the lesser included offense must be inherently committed when the greater offense is committed.

  • People v. Loughlin, 66 N.Y.2d 633 (1985): Repugnant Verdicts and Appellate Review in Criminal Cases

    People v. Loughlin, 66 N.Y.2d 633 (1985)

    A jury verdict in a criminal case is repugnant only when acquittals on some counts necessarily negate an essential element of a count on which the defendant was convicted, viewed in light of the elements of each crime as charged to the jury; furthermore, on the People’s appeal, an appellate court’s review is limited to errors that adversely affected the appellant.

    Summary

    The defendant was indicted on rape and sodomy charges, convicted of one count of sodomy, and acquitted on the other counts. The trial court vacated the verdict as repugnant, but the Appellate Division reversed. The New York Court of Appeals affirmed the Appellate Division, holding that the verdict was not repugnant because the acquittals did not necessarily negate an element of the sodomy conviction. The court also clarified the scope of appellate review in criminal cases, noting that the Appellate Division could only consider errors that adversely affected the People, the appellant in this case.

    Facts

    The defendant was charged with first-degree rape and two counts of first-degree sodomy stemming from a single incident. At trial, the jury convicted the defendant of one count of sodomy but acquitted him of the rape charge and the other sodomy charge. The defendant moved to vacate the verdict.

    Procedural History

    The trial court granted the defendant’s motion and vacated the verdict based on repugnancy. The Appellate Division reversed the trial court’s decision and reinstated the jury verdict. The defendant appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the jury’s verdict acquitting the defendant on the rape and one sodomy count, while convicting him on another sodomy count, was repugnant?

    2. Whether, on the People’s appeal, the Appellate Division could consider the defendant’s alternative arguments for affirmance based on errors that did not adversely affect the People?

    Holding

    1. No, because the acquittals did not necessarily negate an essential element of the sodomy conviction.

    2. No, because the Appellate Division’s review is limited to errors that adversely affected the appellant (the People in this case).

    Court’s Reasoning

    The Court of Appeals relied on its prior holding in <em>People v. Tucker</em> which stated that a repugnant verdict exists only when acquittals on some counts necessarily negate an essential element of a count on which the defendant was convicted. The court found that the defendant’s acquittals on the rape and one sodomy count did not negate an essential element of the sodomy count for which he was convicted.

    The Court rejected the defendant’s argument that the acquittals indicated the jury’s acceptance of a defense equally applicable to the count of conviction, stating that such speculation about the jury’s thought process was rejected in <em>Tucker</em>. The court emphasized that the focus should be on the elements of the crimes as charged, not on subjective interpretations of the jury’s reasoning.

    Regarding appellate review, the Court highlighted the difference between the Civil Practice Law and Rules (CPLR) and the Criminal Procedure Law (CPL). The CPLR allows consideration of any non-final order adverse to the respondent, whereas the CPL limits review to errors that “may have adversely affected the appellant.” The Court reasoned that the different language indicates a narrower scope of review for the Appellate Division in criminal cases on appeals by the prosecution. The Court stated, “[T]he CPL, however, limits the Appellate Division’s review to ‘any question of law or issue of fact involving error or defect in the criminal court proceedings <em>which may have adversely affected the appellant.’</em>” (CPL 470.15, subd 1 [emphasis added.])

    The court pointed out that the defendant’s arguments for affirmance, which alleged errors not affecting the People, could only be considered on a future appeal by the defendant after sentencing. This distinction underscores the principle that appellate courts in criminal cases must focus on redressing harms to the appellant, rather than engaging in a broader review of the entire trial record at the behest of the respondent.

  • People v. Pepper, 59 N.Y.2d 353 (1983): Sufficiency of Corroborating Evidence in Child Sodomy Cases

    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.

  • People v. Thomas, 58 N.Y.2d 831 (1983): Defining Forcible Compulsion in Sodomy Cases

    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.