G., In re

• Decision Date: 04 February 1972
• Citation: 68 Misc.2d 1043,328 N.Y.S.2d 777
• Parties: In the Matter of Jose G., a person alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Family Court

Page 777

328 N.Y.S.2d 777

68 Misc.2d 1043

In the Matter of Jose G., a person alleged to be a Juvenile Delinquent, Respondent.

Family Court, City of New York, New York County.

Feb. 4, 1972.

[68 Misc.2d 1044] Douglas J. Besharov and J. Owen Zurhellen, III, New York City (J. Lee Rankin, Corp. Counsel, of counsel), for petitioners.

Alan Miller, New York City (Charles Schinitsky, Legal Aid Society, Brooklyn, of counsel), for respondent.

OPINION

NANETTE DEMBITZ, Judge:

The major issue in this juvenile delinquency proceeding against a 13-year old boy is the requirement of the Penal Law that no one shall be convicted of rape 'solely on the uncorroborated testimony of the alleged victim.' (P.L. 130.15).

The illogic of the rules on corroboration of a rape victim's testimony was emphasized in 1967--shortly after their re-enactment in the new Penal Law--in opinions by five of the seven judges of the Court of Appeals (People v. Radunovic, 21 N.Y.2d 186, 287 N.Y.S.2d 33, 234 N.E.2d 212). One of the criticisms therein of the corroboration requirement was its implicit deprecation of the credibility of a female victim of a crime compared with a male (21 N.Y.2d at p. 194, 287 N.Y.S.2d 33, 234 N.E.2d 212). The proceeding at bar is yet another example of testimony by a female victim of such a convincing caliber that it establishes guilt beyond a reasonable doubt, even without corroboration as to the rapist's identity (the element of proof most difficult to corroborate). Here the victim had ample opportunity to observe her assailant; her testimony was free of any suggestion of vindictiveness to respondent, who was a complete stranger to her; and all the details of her testimony as well as her manner attested to her credibility.

However, the call for legislative amendment ¹ of the corroboration requirement unfortunately is still unanswered, and the testimony of the victim, no matter how reliable continues to be insufficient in a sex-crime or sex-delinquency case. The clear and unequivocal statutory mandate undoubtedly must be given the same effect in a juvenile delinquency proceeding as in a criminal proceeding against an adult. Matter of Robert M., 37 A.D.2d 527, 322 N.Y.S.2d 62 (1st Dept.); Matter of Byron D., 36 A.D.2d 742, 320 N.Y.S.2d 467 (2nd Dept.);

The case at bar involves allegations of sexual assaults against three victims. The corporation counsel argues that corroboration of each victim's identification of the rapist is supplied by evidence that the respondent's acts against all the victims were part of a common scheme or plan. Preliminary to consideration of this legal and factual issue, the consolidation for trial of the three petitions charging similar acts against respondent, will be reviewed.

CONSOLIDATION OF PETITIONS AGAINST RESPONDENT

Three separate petitions, two alleging acts that would constitute rape if committed by an adult and one alleging an act that would constitute sexual abuse, were consolidated for trial over the objection of respondent's counsel. Though each petition involved a different alleged victim, the three incidents allegedly occurred within a ten day period, within two adjacent apartment-house developments, and in a similar manner.

In moving for consolidation the corporation counsel explained that he intended to offer each victim's identification of respondent to corroborate each other's on the ground that the acts against the three victims were all parts of a common scheme or plan. Accordingly, the CPLR, which under section 165 of the Family Court Act applies to Family Court proceedings when appropriate, authorized the consolidation of the petitions. For, a 'common question of law or fact'--that is, whether respondent's identity could legally be, and was in fact, corroborated in the fashion claimed by corporation counsel--arose under all three petitions (see CPLR, sec. 602(a)).

Further, the consolidation was authorized by section 279 of the Code of Criminal Procedure (which was in effect at the time of the consolidation; its principles were continued in Criminal Procedure Law section 200.20(2)(4), effective September 1, 1971). Section 279 permitted the consolidation of two or more indictments or informations charging crimes 'constituting parts of a common scheme or plan, or . . . crimes of the same or similar character.' ² While the Code was not applicable in its entirety to Family Court proceedings (Matter of Daniel Richard D., 27 N.Y.2d 90, 95, 313 N.Y.S.2d 704, 707, 261 N.E.2d 627, 630), on questions so uniquely related to the administration of the criminal law as those here in issue, rules of criminal procedure seemingly should govern.

Undoubtedly the consolidation was and is proper from a criminal procedure standpoint. See People v. Lombardi, 20 N.Y.2d 266, 269, 273, 282 N.Y.S.2d 519, 520, 523, 229 N.E.2d 206, 207, 210, where the Court upheld the joinder in one indictment of three charges of rape, each of a different victim and at a different time and place, but all allegedly accomplished in a similar manner. Respondent's attorney argues that the presentation of three similar charges simultaneously against a respondent tends to his prejudice in the determination of the truth of each charge. Obviously however, the Legislature believed that prejudice could be prevented and each charge could be fairly considered on its own merits, despite a joinder or a consolidation, even

                in a jury case--there by proper instruction (see Lombardi, 20 N.Y.2d at p. 273, 282 N.Y.S.2d 519, 229 N.E.2d 206).  Certainly in a judge-trial, which is the form of trial in the Family Court, there is even less danger of prejudice.  3  Further, the corporation counsel's contention as to corroboration had sufficient merit on the face of the petitions to require the Court to permit him an opportunity to establish it.  Since the evidence in support of each petition would therefore be admissible in the trial of each other, separate trials would not dispel the alleged possibility of prejudice, and 'as a practical matter, there would be little point in separating the issues' (People v. Munger, 24 N.Y.2d 445, 449, 301 N.Y.S.2d 39, 41)
                

FACTS

The evidence showed that respondent's acts against Virginia, age 14, took place on a Friday afternoon at about 4 P.M., in an apartment building of a group forming a four-block apartment development; against Elizabeth, age 11, the following day at about 7:15 P.M., in a similar building in a similar and adjacent apartment development; and against Rachel, age 14, nine days later at about 6:30 P.M. in a similar apartment building in the latter development. ⁴ The three buildings each had a locked exterior door which could only be opened by a key or through the 'buzzer' system from one of the apartments in the building.

Virginia called her mother on the house-phone, her mother buzzed the front door open, and respondent pushed through the door after her; Elizabeth called a friend's mother on the house-phone who buzzed the door open, and Elizabeth held it open for respondent who was right behind her; Rachel opened the front door with a key and respondent followed her in as she was attempting to close the door. In all three cases respondent followed the victim onto the self-service elevator; after the victim pushed the button for a lower floor, he put his left arm around her throat with his hand over her mouth, held an open knife in his right hand with its point about 5 inches from her chest, and told her that if she kept quiet she wouldn't be hurt; when the elevator got to the top floor, he motioned her out of the elevator and up the stairway to the roof landing; then told her to undress completely and when she hesitated participated in the undressing. He laid all of her clothes on the window ledge as well as the back brace worn by Elizabeth and the musical instruments carried by Virginia and Rachel.

Virginia's mother--the only mother who had buzzed for her daughter to enter and who was aware of the delay between her entrance into the building and arrival at home--came running up to the roof landing while Virginia still was standing up and still wearing her shoes and socks, though otherwise naked. With Elizabeth and Rachel, respondent told each to lie down on the roof landing; he remained fully clothed except for his protruding penis; he kept his watch and knife on the floor beside the girl, lay on top of the girl keeping his penis in the girl's vagina for about 15 minutes and after a few minutes again inserting his penis for about 15 minutes; then ordered the girl to dress, and after she dressed walked part way down the stairs with her, warning her not to tell anyone about the incident. The mother of each girl testified as to her daughter's state of fear and shock or hysteria after the incident, and in Elizabeth's and Rachel's cases of their 'fresh outcry' as to rape and of their bleeding in the vaginal area (a physician who examined Elizabeth shortly thereafter also testified as to her bleeding and injury).

To this Court, observing the demeanor of the victims and their mothers as they underwent lengthy direct and cross-examination, each witness appeared to abstain scrupulously from exaggeration, contrivance, or false accusation. For example, the only person in a position to corroborate the victims' testimony as to respondent's identity--Virginia's mother--testified that she was too alarmed and that her daughter's assailant ran by her too quickly, for her to be able to identify him with certainty; and each mother had instructed her daughter that she must be absolutely sure that respondent was the assailant before identifying him. As noted above, there appeared to be no excitability or vindictiveness against respondent, who was a complete stranger to these victims. Thus the reasons underlying the requirement of corroboration for sex crimes--the likelihood of emotions productive of false accusations--is absent. The Court finds that the testimony elicited in support of the...