People v. Coleman
| Decision Date | 13 October 1977 |
| Citation | 42 N.Y.2d 500,369 N.E.2d 742,399 N.Y.S.2d 185 |
| Parties | , 369 N.E.2d 742 The PEOPLE of the State of New York, Respondent, v. Gregory COLEMAN, Appellant. The PEOPLE of the State of New York, Respondent, v. David HARVEY, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Mary McGowan Davis and William E. Hellerstein, New York City, for Gregory Coleman, appellant.
Lewis R. Friedman and Herman Kaufman, New York City, for David Harvey, appellant.
Mario Merola, Dist. Atty. (Joyce Marie Andren, New York City, of counsel), for respondent.
The defendants were convicted, at a jury trial, of robbery in the second degree (Penal Law, § 160.10) and sodomy in the first degree; by "forcible compulsion" (Penal Law, § 130.50, subd. 1). The incident occurred at a Bronx housing complex in March of 1973. At that time both of the defendants were 18 years old. On this appeal they claim that (1) the evidence was legally insufficient (2) the court should have suppressed certain statements made by the defendants to the police, in the absence of counsel, but after an attorney had appeared and (3) their joint representation by one attorney deprived them of effective assistance of counsel because there was a conflict of interest.
The complainant stated that in 1973 she resided in a housing complex in The Bronx. She had lived there for several years with her husband and three children. During this period she had frequently seen the defendants in the lobby and hallways, but she had never spoken to them prior to March 3, 1973. On that date, at about 5:30 in the afternoon, she and her four-year-old son went to a nearby building to use the laundry room. When she returned, an hour or two later, she pushed her shopping cart into the elevator and waited to be taken to her sixth-floor apartment. Just as the doors were closing the defendant Harvey "jerked" them open and he and Coleman entered the elevator.
At the sixth floor the elevator stopped and the doors opened. But when she started to leave, Coleman stood between her and the doors and told her she was not getting off. While she and Coleman argued over this, Harvey reached over, took her son and placed him on his shoulders. The boy began to cry. One of the defendants then pressed the button for the tenth floor and the elevator proceeded up.
When they reached the tenth floor Coleman once again stood in front of the open door and told the complainant she was not getting off. He then jammed her shopping cart into the open door and told her to take off all her clothes. When she protested the defendant shouted at her and Harvey reached up and unscrewed the light bulb. Her son then began to scream in the darkness. Harvey shouted at the boy to "shut up", but he would not, and Harvey reached up and put the light bulb on again. Finally, after the defendants "hollered" at her several times complainant began removing her clothes because, as she stated at the trial, "I was scared for my life and I was scared for my son." As she removed her coat $5 fell onto the floor. Harvey told her to hand it over, which she did. Coleman then told her to "pull" her clothes off faster. He grabbed her blouse and her pants and ripped them.
When complainant had all her clothes off, Harvey "zipped" his pants down and told her, in effect, to perform fellatio. She protested saying she had never done this before, but the defendant responded "you are going to do it now." With her son still on Harvey's shoulders she complied with his demand. As she stated at the trial, There were three acts of sodomy in all: two with Harvey and one with Coleman. Finally complainant was able to work her way between the defendants and the door. She kicked the shopping cart out of the way and ran down the hall calling for help. The defendants left the elevator and retreated down the staircase. With the help of a neighbor, she soon recovered her son and her clothing from the elevator.
The complainant's son who was six at the time of trial, gave unsworn testimony which generally corroborated his mother's statements except that he was unable to identify the defendants. The arresting officer testified that when he asked the defendants why they became involved with complainant, they stated without elaboration that "she is always trying to make out with us and we just laugh at her and we got out at the 10th floor." According to the officer, Coleman spoke first and Harvey just said "yes, yes" to Coleman's statement.
On appeal Harvey claims that this evidence was legally insufficient to establish that the sodomy was committed by forcible compulsion (Penal Law, § 130.50, subd. 1). The Penal Law ( § 130.00, subd. 8) states that forcible compulsion "means physical force that overcomes earnest resistance; or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another". The People concede that complainant was not overcome by physical force and she herself admitted that there were no express threats of physical harm, serious or otherwise, to herself or her child. The question then is whether there is sufficient evidence to support a finding of an implied threat which placed her in fear of immediate death or serious physical injury.
Harvey apparently recognizes that his alleged conduct and Coleman's was not entirely free of menace. He urges however that there is no basis for concluding that the threat inherent in their actions involved immediate death or serious injury as opposed to minor injury or pain. The point, of course, is not what the defendants would have done, but rather what the victim, observing their conduct, feared they would or might do if she did not comply with their demands. As noted complaina testified that she feared for her life and the life of her son. She stated that at the time she capitulated she was virtually imprisoned and isolated in the elevator; the defendants had seized her son, taken the little money she possessed and had deprived her of all her clothing. Under the circumstances the jury could find that when the defendants proceeded from outrage to outrage, and finally shouted at her to perform the sexual acts, she genuinely feared that if she did not comply, she or her son or both of them might be seriously injured or killed. In short, on this record, the jury could find that complainant was telling the truth when she stated "I did it because I was scared and I suffered for my life * * * I was scared for myself and I was scared for my son."
On a related point both of the defendants argue that the testimony of complainant's six-year-old son is insufficient to corroborate her testimony. Under the statute then in effect (Penal Law, § 130.15, repealed by L.1974, ch. 14, § 1) the victim's testimony had to be corroborated by "other evidence tending to: * * * Establish" both the attempt to commit the deviate sexual acts and the element of forcible compulsion. The son's testimony which supported the mother's statements on these points, was not under oath, and thus it too had to be corroborated pursuant to CPL 60.20 (subd. 3). That statute provides that a "defendant may not be convicted of an offense solely upon the unsworn evidence of a child less than twelve years old, given pursuant to subdivision two."
The defendants urge that the testimony of two witnesses, each of whom has to be corroborated, cannot be used to corroborate each other. This they urge is similar to one accomplice seeking to corroborate another, which we have held to be insufficient to satisfy the accomplice rule (see, e. g., People v. Mullens, 292 N.Y. 408, 414, 55 N.E.2d 479, 481; People v. O'Farrell, 175 N.Y. 323, 327-328, 67 N.E. 588, 589). But cross-corroboration is permitted when, as here the "witnesses were required to be corroborated under different statutes and for different reasons" (People v. Jelke, 1 N.Y.2d 321, 333, 152 N.Y.S.2d 479, 489, 135 N.E.2d 213, 221).
The defendants also claim that the statements they gave to the arresting officer should have been suppressed because they were obtained in violation of their right to counsel.
There was a pretrial suppression hearing. The arresting officer...
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...corroboration may corroborate each other, even in criminal prosecutions involving sexual abuse ( see, People v. Coleman, 42 N.Y.2d 500, 506, 399 N.Y.S.2d 185, 369 N.E.2d 742; see also, People v. Jackson, 121 A.D.2d 743, 504 N.Y.S.2d 159, affd. 70 N.Y.2d 768, 520 N.Y.S.2d 746, 514 N.E.2d 136......
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...violence and intimidation she had witnessed were sufficient to establish the element of forcible compulsion ( see People v. Coleman, 42 N.Y.2d 500, 505–506, 399 N.Y.S.2d 185, 369 N.E.2d 742 [1977];People v. Fulwood, 86 A.D.3d at 810–811, 927 N.Y.S.2d 246;People v. Porter, 82 A.D.3d 1412, 14......
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...do if [the victim] did not comply with [his] demands' " ( id. at 415-416, 534 N.Y.S.2d 132, 530 N.E.2d 839, quoting People v. Coleman, 42 N.Y.2d 500, 505, 399 N.Y.S.2d 185, 369 N.E.2d 742 [1977]; see People v. Maggio, 70 A.D.3d 1258, 1258-1259, 896 N.Y.S.2d 220 [2010]; People v. Littebrant,......
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