People v. Blodgett
| Decision Date | 19 April 1990 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Lawrence S. BLODGETT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Terence L. Kindlon, Albany, for appellant.
David A. Wait, Dist. Atty. (Thomas J. McNamara, of counsel), Ballston Spa, for respondent.
Before MAHONEY, P.J., and KANE, YESAWICH and MERCURE, JJ.
Appeal from a judgment of the County Court of Saratoga County (Simone, Jr., J.), rendered September 27, 1988, upon a verdict convicting defendant of two counts of the crime of sodomy in the third degree.
Defendant was indicted for five counts of sodomy in the third degree and three counts of endangering the welfare of a child. County Court dismissed the latter three counts and defendant was found guilty after a jury trial of counts two and three alleging sodomy in the third degree under Penal Law § 130.40(2). These counts charged defendant with being 21 years old or more and committing two separate incidents of deviate sexual intercourse, one oral and one anal, with a male under 17 years old. Defendant was sentenced to consecutive indeterminate terms of incarceration of 1 1/3 to 4 years. This appeal ensued.
Defendant argues that the People failed to prove that he was at least 21 years old, an essential element of sodomy in the third degree as defined in Penal Law § 130.40(2). The People counter that defendant's age properly was established solely by the jury's observation of defendant. We cannot countenance this position. The People must affirmatively prove all elements of the charged crime. Reliance on the jury's observation of a defendant to establish the necessary element of age simply does not satisfy the People's obligation of proof. Moreover, such reliance effectively prevents appellate consideration of the sufficiency of the evidence since an appellate court usually does not have the opportunity to observe a defendant, which would also foreclose exercise of our factual and discretionary review powers (see, CPL 470.15[3][b], [c]. Accordingly, we conclude that the People failed to establish a prima facie case so that dismissal of the indictment is warranted.
This result is not contrary to People v. Patterson, 149 A.D.2d 966, 540 N.Y.S.2d 626, lv. denied 74 N.Y.2d 745, 545 N.Y.S.2d 119, 543 N.E.2d 762, People v. Jackson, 148 A.D.2d 930, 539 N.Y.S.2d 168, lv. denied 74 N.Y.2d 665, 543 N.Y.S.2d 408, 541 N.E.2d 437 and People v. Saddlemire, 121 A.D.2d 791, 793, 504 N.Y.S.2d 240, in which there was some other evidence, beyond merely the jury's observation, of the relevant person's age. Likewise, this result is not at odds with People v. Kaminsky, 208 N.Y. 389, 102 N.E. 515 in which the age of a child was at issue and personal observation of the child by the trier of fact was authorized by former Penal Code § 19 (see, Penal Law former § 817). * In this case...
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