People v. Bowman

• Decision Date: 20 October 1976
• Citation: 387 N.Y.S.2d 982,88 Misc.2d 50
• Parties: The PEOPLE of the State of New York v. Donald BOWMAN, Defendant.
• Court: New York City Court

Page 982

387 N.Y.S.2d 982

88 Misc.2d 50

The PEOPLE of the State of New York v. Donald BOWMAN, Defendant.

Criminal Court of the City of New York, New York County.

Oct. 20, 1976.

Robert Morgenthau, Dist. Atty. (Robert Gottlieb, New York City of counsel), for the People.

William Gallagher, New York City (Douglas L. Colbert, New York City, of counsel), for defendant.

BENJAMIN, ALTMAN, Judge.

The defendant Donald Bowman was charged with rape first degree, a violation of section 130.35 of the Penal Law. A preliminary hearing was held on July 20, 1976, at the conclusion of which the court on the District Attorney's motion, reduced the felony charge to a misdemeanor, section 130.20, sexual misconduct. The crime of unlawful imprisonment was retained. Defendant waived the reading of the reduced charges and the rights thereunder but did not object to the reduced charge.

The defendant is forty-two. The complainant is well over the age of seventeen.

Section 130.20, subdivision 1, states:

'Being a male, he engages in sexual intercourse with a female without her consent . . ..'

Section 130.35, subdivision 1, reads:

'A male is guilty of rape in the first degree when he engages in sexual intercourse with a female:

1. By forcible compulsion'.

The commentaries of Arnold Hechtman following Penal Law § 130.20 (McKinney's Cons.Laws of N.Y., Book 39, p. 467) state:

'This section represents the basic crimes of rape (subd. 1) and sodomy (subd. 2), and includes therefore, all of the higher degrees of each of these crimes. In addition, this section covers a fact situation not included within any of the higher degrees, viz., when the victim is over thirteen but under seventeen years of age and the defendant is under twenty-one years of age . . .'

Defendant contends that since (1) 'forcible compulsion' is no longer part of the alleged crime charged against the defendant and (2) the commentary to § 130.20 indicates that the statute is geared particularly to complainants under the age of seventeen, therefore the charge of § 130.20 should be dismissed as to the defendant.

Prosecution opposition is two-fold:

1. Commentaries state that § 130.20 includes all the higher degrees of rape (§ 130.35) and in any event the statute is clear; and 2. The District Attorney has wide latitude to prosecute.

While it is true that initially a combined reading of § 130.20 and the commentaries might give the reader the impression that the applicability of § 130.20, subd. 1, applies only to a specific age group, a careful re-reading does not give this court that reaction. Moreover, if the statute is clear on its face, the commentaries are merely descriptive to show possible legislative intent. Even if this court were to take defendant's contention based on the commentaries, if the language of the statute is clear on its face, it must prevail over the commentaries.

Where the legislative language is clear, there is no occasion for examination into extrinsic evidence to discover the legislative intent. Only where legislative language is ambiguous is the consideration of extrinsic evidence warranted. In other words, where no ambiguity or doubt appears in a statute, the court should confine its attention to the statute and not allow extrinsic circumstances to introduce a difficulty in the interpretation of plain language (see People v. Johnson, 12 Misc.2d 25, 176 N.Y.S.2d 744, affd., 6 N.Y.2d 549, 190 N.Y.S.2d 694, 161 N.E.2d 9; New York Ambassador, Inc. v. Board of Standards, Sup., 114 N.Y.S.2d 901, reversed on other grounds, 281 App.Div. 342, 119 N.Y.S.2d 805, affd., 305 N.Y. 791, 113 N.E.2d 302).

The prosecutor has wide powers and latitude as to whom, whether and how to prosecute (People v. Harding, 44 A.D.2d 800, 355 N.Y.S.2d 394; People v. Elfe, 34...