People v. Ahlers
| Citation | 470 N.Y.S.2d 483,98 A.D.2d 821 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Karl AHLERS, Appellant. |
| Decision Date | 01 December 1983 |
| Court | New York Supreme Court — Appellate Division |
David M. Kaplan, Kingston, for appellant.
Michael Kavanagh, Dist. Atty., Kingston (Marsha Solomon, Kingston, of counsel) for respondent.
Before MAHONEY, P.J., and MAIN, CASEY, YESAWICH and WEISS, JJ.
Appeal from a judgment of the County Court of Ulster County, rendered August 25, 1982, upon a verdict convicting defendant of the crimes of sodomy in the first degree (two counts), sodomy in the second degree (one count), sodomy in the third degree (one count), sexual abuse in the first degree (three counts) and endangering the welfare of a child (two counts).
Defendant was indicted on a 32-count indictment for the crimes of sodomy in the first, second, and third degrees, sexual abuse in the first degree, obscenity in the second degree and endangering the welfare of a child. Specifically, defendant was charged with engaging in various sexual activities with children ranging in ages from 7 to 16 either between December 25, 1980 and January 2, 1981, or during certain weekends between December, 1980 and July, 1981, and with possessing, with intent to promote, films depicting sexual activity between minors. At the close of trial, the eight obscenity counts were dismissed and defendant was found guilty of two counts of sodomy in the first degree, one count of sodomy in the second degree, one count of sodomy in the third degree, three counts of sexual abuse in the first degree and two counts of endangering the welfare of a child. This appeal followed.
Initially, defendant contends that the evidence was insufficient to convict him of sodomy and sexual abuse because his involvement in the acts constituting these crimes was never corroborated as required by section 130.16 of the Penal Law. We disagree. Although the children explicitly described sexual acts with defendant occurring at times specified in the indictment, none of the children, because of, for example, a lack of memory as to specific time or place, could specifically corroborate the other children's testimony. Nonetheless, considering the cumulative effect of all the children's testimony as a whole (see People v. Elliott, 106 N.Y. 288, 292, 12 N.E. 602; People v. DeVyver, 89 A.D.2d 745, 747, 453 N.Y.S.2d 915), we conclude that the corroboration requirement, which "may be satisfied with circumstantial evidence and need not point to the particular form of sexual contact" (People v. DeBerry, 76 A.D.2d 933, 429 N.Y.S.2d 268), was satisfied. For example, Jimmy J. testified that he saw Charlie T. lying naked in the prone position on defendant's bed while defendant, also naked, was kneeling over Charlie. Jimmy further testified that he saw Freddy J. in bed with defendant, that Freddy and defendant were naked, and that he (Jimmy) was asked to leave. Freddy testified that he had oral sex with defendant at a time when Jimmy was in the room. This testimony tends to corroborate, albeit circumstantially, the fact that defendant had sexual contacts with these children. Furthermore, corroboration can be supplied by evidence of uncharged sex acts which are "related in nature, time, and modus operandi " (People v. Chandley, 89 A.D.2d 740, 741, 453 N.Y.S.2d 919) and which show "defendant's amorous designs upon the victim" (People v. De Vyver, supra, 89 A.D.2d p. 747, 453 N.Y.S.2d 915). In this case, Eddie T. testified that he saw Eddie J. and defendant have oral sex in Shandakan at a time prior to that charged in the indictment and Eddie J. verified that he had oral sex with defendant there. Considering the similarity of circumstances of the sexual contacts as discussed below, the uncharged act of sodomy between Eddie J. and defendant provides further corroboration.
With corroboration of certain of the charged sex acts having been...
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