People v. Porcaro

• Decision Date: 08 July 1959
• Citation: 160 N.E.2d 488,189 N.Y.S.2d 194,6 N.Y.2d 248
• Parties: , 160 N.E.2d 488 PEOPLE of the State of New York, Respondent, v. Enrico PORCARO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 194

189 N.Y.S.2d 194

6 N.Y.2d 248, 160 N.E.2d 488

PEOPLE of the State of New York, Respondent, v. Enrico PORCARO, Appellant.

Court of Appeals of New York.

July 8, 1959.

Herbert S. Siegal, New York City, for appellant.

Daniel V. Sullivan, Dist. Atty., New York City (Irving Anolik, New York City, of counsel), for respondent.

VAN VOORHIS, Judge.

Appellant was indicted for first degree sodomy, second degree assault and impairing the morals of a minor in violation of subdivision 2 of section 483 of the Penal Law. These charges arose out of one incident alleged to have occurred on January 1, 1957. The jury acquitted appellant of the first two charges but found him guilty of the last charge, which is a misdemeanor. As in the case of People v. Oyola, 6 N.Y.2d 259, 189 N.Y.S.2d 203, decided simultaneously, the evidence against appellant consisted entirely of testimony by a 10-year-old child, who is in this instance testified to having regular and frequent sexual intercourse with appellant (her stepfather) during four years, in the usual manner as well as through her mouth. Appellant denied this testimony completely. No circumstantial evidence attests its veracity. Although, according to complainant's version, this course of conduct began when she was 6 years old and continued until she was 10, this child named Linda said that she did not tell her mother anything about it until January 27, 1957. Then she said that she told the whole story.

Here, as in Oyola, a matrimonial dispute is in the background. Linda is Ida's child by a previous marriage. In 1950 Ida and appellant, while each was married to another, left New York City taking Linda with them to Florida, where they lived in the same room until Ida and appellant obtained divorces from their respective spouses and were married. In 1951 the couple returned to New York City as man and wife. In January, 1957, when Linda testified that she first informed her mother of her lurid past, appellant's former wife Elizabeth was arranging to take him back. When his former wife was reminded upon the witness stand that he was no longer her husband, she answered: 'No, he is not my husband yet.' When Ida Porcaro was questioned upon the same topic, she testified:

'Q. Do you know today, madam, whether or not he is back with his first wife and three children? A. I take it for granted he is, sir.'

Although Ida denied telling appellant that she would see him rot in jail before rejoining his first wife, a remark ascribed to her elsewhere in the testimony, this pivotal event occurred precisely when the child is supposed to have unfolded this long, sordid story of her personal life. In fact Linda testified that she told her mother that she had sexual intercourse with her stepfather through her genitals again on that very day.

Two days after this conversation and on January 29, 1957 (the day on which appellant was arrested) the mother took this child to a doctor for physical examination, but the doctor's findings were not disclosed. Timely and repeated demands by appellant were refused for a physical examination of the child. When on the trial appellant's counsel called upon the prosecution to stipulate that Linda was examined at her mother's instance by a doctor on January 27th, 28th or 29th, 1957 and found to be virginal, the Assistant District Attorney refused to concede this 'on the ground it is immaterial.' The theory on which it was claimed to be immaterial is that penetration is not an element of oral sodomy, second degree assault, or impairing morals for which appellant was indicted. This reasoning misses the point that penetration would have occurred if the morals of this child had been impaired in the manner to which she testified. In answer to questions by the Assistant District Attorney, she testified that during four years appellant repeatedly inserted his sexual organ into her private parts, the last occasion on January 27, 1957. The prosecution depended entirely upon the truth of the narrative of this child. If a physical examination of the child had revealed a broken hymen, appellant would not necessarily have been implicated. Upon the other hand, if her hymen were found to have been intact, the child's entire testimony would have been discredited. Whatever may be the rule regarding physical examinations under other circumstances, common fairness requires that a defendant in a criminal action shall be allowed to have a physical examination in order to learn whether a complaining witness is in a condition in which she would be likely to have been if her testimony were true, provided that the testimony is material as this was.

Although this child was sworn, so that the express statutory requirement of section 392 of the Code of Criminal Procedure does not apply, the evidence against appellant in this record is not of the clear and convicing kind which is necessary in order to sustain a conviction of this type (People v. Meyers, 309 N.Y. 837, 130 N.E.2d 622; People v. Dutton, 305 N.Y. 632, 111 889; People v. Rosen, 293 N.Y. 683, 56 N.E.2d 297; People v. Derner, 288 N.Y. 599, 42 N.E.2d 605; People v. Slaughter, 278 N.Y. 479, 15 N.E.2d 70; People v. Churgin, 261 N.Y. 661, 185 N.E. 782).

For the reasons stated in People v. Oyola, 6 N.Y.2d 259, 189 N.Y.S.2d 203, supra, the judgment of conviction should be reversed and the indictment dismissed.

FULD, Judge (concurring).

I agree with Judge VAN VOORHIS for reversal both in this case and in People v. Oyola, 6 N.Y.2d 259, 189 N.Y.S.2d 203, but I would place my decision upon the ground that, as matter of law, no conviction for impairing the morals of a child may validly rest on the uncorroborated testimony of the child victim. Indeed, I have long believed that such was the law. See, e. g., People v. Meyers, 309 N.Y. 837, 130 N.E.2d 622; People v. Rosen, 293 N.Y. 683, 56 N.E.2d 297; People v. Derner, 288 N.Y. 599, 42 N.E.2d 605; People v. Slaughter, 278 N.Y. 479, 15 N.E.2d 70; People v. Churgin, 261 N.Y. 661, 185 N.E. 782. The need for such a rule is obvious for, as Wigmore has observed, "The most dangerous witnesses in prosecutions for morality offences are the youthful ones (often mere children) in whom the sex-instinct holds the foremost place in their thoughts and feelings. * * * It is just such witnesses that often bring into their picture individuals who have never been near them and that throw suspicion recklessly on the most worthy persons." 3 Wigmore, Evidence (3d ed., 1940), p. 463. Anyone who has had experience in prosecuting this type of case can document this observation with graphic illustrations.

The Legislature has expressly provided that no person may be convicted of a crime upon the unsworn testimony of a child under 12 'unsupported' by other evidence (Code of Criminal Procedure, § 392), but such a restriction does not, indeed cannot, preclude the court from making corollary provisions to safeguard the accused where judicial experience indicates the necessity. In this connection, it is noteworthy that no morals conviction based solely on the unsupported testimony of a child, sworn or unsworn, has ever survived in this court. See People v. Meyers, 309 N.Y. 837, 130 N.E.2d 622, supra, and other cases cited above. I would make explicit the rule of law implicit in these decisions.

BURKE, Judge (dissenting).

This court lacks the power to reverse the judgment of conviction on the ground that the sworn testimony of the child witness is uncorroborated.

At common law, the testimony of a female victim in any case of sexual offense was not required to be corroborated. Such testimony alone was sufficient to support a conviction (7 Wigmore, Evidence (3d ed.), § 2061). The requirement of corroboration, that is the necessity to produce independent evidence supporting the testimony of the injured female, is of statutory origin. Thus corroboration is required by statute in cases of abduction (Penal Law, § 71), adultery (id., § 103), compulsory prostitution of a wife (id., § 1091), compulsory marriage (id., § 1455), rape (id., § 2013), seduction (id., § 2177), and compulsory prostitution (id., § 2460). Moreover, the unsworn testimony of a child under 12 years of age (Code of Criminal Procedure, § 392) and also the testimony of an accomplice (Code of Criminal Procedure, § 399) must be corroborated.

Neither the Code of Criminal Procedure nor the Penal Law require corroborative evidence of a complainant's testimony to support a conviction for crimes against nature, incest or impairing the morals of a minor. While charges of this nature are easily lodged and men may be maligned, it is also true that these acts usually are performed in secret and far from the view of witnesses.

Professor Wigmore, in his excellent treatise on the law of evidence, makes a plea for the use of psychiatric testimony in connection with the mental state of female complainants in certain sexual cases, viz., rape, rape under age, seduction and assault. However, this is merely a plea for a change in the law and does not deal with crimes against nature, incest or impairing the morals of a minor. In the 1937-1938 Report of the American Bar Association's Committee on the Improvement of the Law of Evidence, the committee recommended that: 'in all charges of sex offenses, the complaining witness be required to be examined before trial by competent psychiatrists for the purpose of ascertaining her probable credibility, the report to be presented in evidence.' The report of the psychiatrists would only be additional testimony on the credibility of a complainant and, like all opinion evidence, could either be accepted or rejected by a juiry or the trier of the facts.

Hence the requirement of corroboration or other additional testimony, whether it be desirable or not, must be left to the Legislature which has not as yet seen fit to require such additional proof in these matters.

Section 392 of the Code of Criminal Procedure provides that...