People v. Bercume

• Decision Date: 20 March 1972
• Citation: 329 N.Y.S.2d 862,38 A.D.2d 356
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard BERCUME, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 862

329 N.Y.S.2d 862

38 A.D.2d 356

The PEOPLE of the State of New York, Respondent, v. Richard BERCUME, Appellant.

Supreme Court, Appellate Division, Third Department.

March 20, 1972.

William H. Power, Jr., Dist. Atty., Canton (Preston C. Carlisle, Ogdensburg, of counsel), for respondent.

Verner M. Ingram, Potsdam, for appellant.

Before HERLIHY, P.J., and STALEY, GREENBLOTT, COOKE and REYNOLDS, JJ.

GREENBLOTT, Justice.

This is an appeal from a judgment of the County Court of St. Lawrence County, rendered December 21, 1970, upon a verdict convicting defendant of the crimes of rape in the first degree and unlawful imprisonment in the first degree.

The complainant and a female companion were both students at Potsdam State Teachers College. Their version of the facts surrounding the alleged crimes is as follows.

On the evening of October 7, 1969, as they were returning to the college from the Village of Potsdam, an automobile approached them and an occupant asked complainant if they wanted a ride. Although she refused, the girls were pulled into the car. The four male occupants, all brothers, refused to let the girls out of the car at the college, the driver, Ernest Bercume, stating that he first had to get some gasoline. However, an open gas station was passed. As the girls pleaded to be let out, appellant replied: 'Shut up or I'll kill you'. Though the car was traveling at a high rate of speed, complainant opened the door and attempted to jump out. After first restraining the girls, the brothers tried to push them out; complainant was punched in the eye by the appellant, and suffered a bruise. The car was then stopped and the girls were pushed back into the car. Appellant got into the rear seat with complainant.

As they continued, appellant removed complainant's panty hose and underpants and began to 'play all around with (her)'. The girls were taken to the end of a dirt road, whereupon Ernest took the female companion and disappeared into the woods. Appellant then took complainant into the woods, stating: 'I won't hurt you if you do what I say'. He also told her he did not know what would happen to her friend as Ernest was crazy and had said he had killed people before. After arriving in the woods he told her '(t)ake off your clothes or you're going to get hurt bad', threw her down on the ground, jumped on top of her and had intercourse with her. They then returned to the car, but, not finding Ernest there, went again to the woods. Appellant put his hands around complainant's neck and threatened to kill her if she went to the police. She was then raped a second time. Before the girls were released, they were again threatened and warned not to tell anyone what had occurred.

They immediately called the police. Complainant was examined by Dr. Stevenson shortly thereafter. He observed fresh bruises over her right eyebrow and on the outer left aspect of her left leg. He also observed large holes in complainant's panty hose. From his medical examination, the doctor concluded that she had had recent intercourse.

Appellant's primary contention is that the necessary corroborative evidence to support the victim's testimony is lacking. The 'other evidence' required where one is accused of the crime of rape 'must be of the character that tends to establish first, that the crime of rape was committed, and, second, that the defendant was the one who committed the crime' (People v. Masse, 5 N.Y.2d 217, 219, 182 N.Y.S.2d 821, 822, 156 N.E.2d 452, 453; People v. Spinks, 37 A.D.2d 424, 427, 326 N.Y.S.2d 261, 264). The corroborative evidence required may be established circumstantially (People v. Duegaw, 34 A.D.2d 1043, 1044, 312 N.Y.S.2d 518; People v. Dow, 34 A.D.2d 224, 228, 310 N.Y.S.2d 558, affd. 28 N.Y.2d 860, 322 N.Y.S.2d 253, 271 N.E.2d 230; People v. De Nigris, 157 App.Div. 798, 142 N.Y.S. 620) and is sufficient if it affords proof of circumstances tending to show the existence of every material fact essential to the crime charged (People v. Radunovic, 21 N.Y.2d 186, 287 N.Y.S.2d 33, 234 N.E.2d 212; People v. Duegaw, Supra; People v. Dow, Supra; People v. Elston, 186 App.Div. 224, 174 N.Y.S. 1).

Adequate corroboration is present to establish that complainant engaged in sexual intercourse on the night of the alleged rape and that appellant, if anyone, committed the crime. The more difficult question is whether there is sufficient corroborative evidence of the element of force.

In...