Dakota EE, Matter of

• Decision Date: 03 November 1994
• Citation: 618 N.Y.S.2d 133,209 A.D.2d 782
• Parties: In the Matter of DAKOTA EE, 1 Alleged to be a Juvenile Delinquent. Washington County Attorney, Respondent, Dakota EE, 1 Appellant.
• Court: New York Supreme Court — Appellate Division

Page 133

618 N.Y.S.2d 133

209 A.D.2d 782

In the Matter of DAKOTA EE, ¹ Alleged to be a Juvenile Delinquent Washington County Attorney, Respondent Dakota EE, ¹ Appellant.

Supreme Court, Appellate Division Third Department.

Nov. 3, 1994.

Henry P. Oswald, Law Guardian, Salem, for appellant.

Donald C. Clark Jr., Dept. of Social Services, Fort Edward, for respondent.

Before CARDONA, P.J., and MIKOLL, MERCURE, WHITE and CASEY, JJ.

CASEY, Justice.

Appeal from an order of the Family Court of Washington County (Hemmett Jr., J.), entered December 21, 1993, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 3, to adjudicate respondent a juvenile delinquent.

Respondent, who was found guilty of committing acts which, if committed by an adult, would constitute the crimes of rape in the first degree, sodomy in the first degree and incest, contends that there was insufficient evidence to support the finding of forcible compulsion, which was based solely upon the victim's testimony, and that the finding was against the weight of the evidence. Corroboration is not required to establish rape, sodomy or sexual abuse based upon allegations of forcible compulsion (see, People v. Agard, 199 A.D.2d 401, 402, 606 N.Y.S.2d 239, lv. denied 83 N.Y.2d 868, 613 N.Y.S.2d 129, 635 N.E.2d 298; People v. Vasquez, 193 A.D.2d 638, 597 N.Y.S.2d 452, lv. denied 82 N.Y.2d 728, 602 N.Y.S.2d 825, 622 N.E.2d 326). Nor is physical injury, screaming or crying out a necessary component of first degree rape (People v. Cook, 186 A.D.2d 879, 880, 588 N.Y.S.2d 919, lv. denied 81 N.Y.2d 761, 594 N.Y.S.2d 723, 610 N.E.2d 396). Forcible compulsion can be inferred from the facts leading up to the rape or sodomy (People v. Gonzalez, 136 A.D.2d 735, 524 N.Y.S.2d 73, lv. denied71 N.Y.2d 896, 527 N.Y.S.2d 1006, 523 N.E.2d 313). "[A] threat, either express or implied, which places a person in fear of physical injury is enough to constitute forcible compulsion" (People v. Cook, supra, at 880, 588 N.Y.S.2d 919), and "[t]he proper focus is on the state of mind produced in the victim by the defendant's conduct" (People v Thompson, 72 N.Y.2d 410, 416, 534 N.Y.S.2d 132, 530 N.E.2d 839).

The victim testified that respondent removed her clothing, put her in a closet, had intercourse with her and put his penis in her mouth. She explained that she did not consent and that he forced her, placing his hand over her mouth so that she would not scream. She added that she was frightened to death. The victim's testimony that she did not consent to respondent's acts but submitted because of his domination of her and her fear is sufficient to satisfy the element of forcible compulsion (see, People v. Wilson, 192 A.D.2d 782, 596 N.Y.S.2d 528; People v. LaRocco, 167 A.D.2d 557, 562 N.Y.S.2d 228; People v. Smolen, 166 A.D.2d 248, 564 N.Y.S.2d 105, lv. denied 77 N.Y.2d 844, 567 N.Y.S.2d 212, 568 N.E.2d 661). As to the weight of the evidence, we note that there was nothing in the victim's testimony which rendered her testimony incredible as a matter of law (see, People v. Attanasio, 191 A.D.2d 447, 594 N.Y.S.2d 299, lv. denied 81 N.Y.2d 967, 598 N.Y.S.2d 768, 615 N.E.2d 225). In this juvenile delinquency proceeding, it was for the court, as the sole trier of fact, to determine the credibility of witnesses and to resolve disputed questions of fact (Matter of Michael D., 109 A.D.2d 633, 634, 486 N.Y.S.2d 213, affd. on mem below 66 N.Y.2d 843, 498 N.Y.S.2d 365, 489 N.E.2d 252). Our review of the record provides no basis to disturb Family Court's determination, implicit in its finding that the allegations of the petition had been sustained, to credit the testimony of the victim over that of respondent and other witnesses (see, People v. Walker, 175 A.D.2d 146, 147, 572 N.Y.S.2d 36, lv. denied 78 N.Y.2d 1131, 578 N.Y.S.2d 888, 586 N.E.2d 71). We conclude that Family Court's determination is supported by legally sufficient evidence and is not against the weight of the evidence (see, People v. O'Donnell, 138 A.D.2d 896, 526 N.Y.S.2d 630, lv. denied 72 N.Y.2d 864, 532 N.Y.S.2d 514, 528 N.E.2d 904).

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