People v. Crandall

• Decision Date: 15 July 1976
• Citation: 53 A.D.2d 956,386 N.Y.S.2d 108
• Parties: The PEOPLE of the State of New York, Respondent, v. George CRANDALL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 108

386 N.Y.S.2d 108

53 A.D.2d 956

The PEOPLE of the State of New York, Respondent, v. George CRANDALL, Appellant.

Supreme Court, Appellate Division, Third Department.

July 15, 1976.

Richard A. Kohn, Albany, for appellant.

Sol Greenberg, Albany County Dist. Atty., Albany (George H. Barber, Albany, of counsel), for respondent.

Before SWEENEY, J.P., and KANE, MAHONEY, LARKIN and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Albany County, rendered August 28, 1975, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree and unlawful imprisonment in the second degree.

The factual background of this case is set forth in the appeal of a codefendant (People v. Cavanaugh, 48 A.D.2d 949, 369 N.Y.S.2d 211) and in the prior appeal to this court by the defendant in People v. Crandall, 48 A.D.2d 946, 369 N.Y.S.2d 216.

The defendant contends that the record fails to establish an act of 'sexual contact' as defined in subdivision 3 of section 130.00 of the Penal Law; however, there was ample evidence for the jury as to the victim having touched his sexual parts with her hands and that alone is sufficient to be 'sexual contact'. There is nothing repugnant about the prior acquittal of the defendant on the charge of sodomy and the present conviction of sexual abuse upon this record. (See People v. Crandall, supra; People v. Tucker, 47 A.D.2d 583, 363 N.Y.S.2d 180.)

The defendant's contention that reversible error occurred because the People did not give notice that a witness had made a photographic identification of the defendant is also without substantial merit. No request for such a hearing was made at trial when the information became available to defense counsel. In any event, if there was error it was not such as would reasonably suggest that the jury might have reached a different result (People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787). While this case presents sharp factual issues as to precisely what occurred between the defendant and the victim, the exact identity of the defendant as the one who initially brought the victim into contact with himself and his male companions was not of great or serious importance as to the crime committed in Albany County.

The jury at 2:14 A.M. sent the court a note saying that they had been unable to reach a unanimous verdict. At 2:16 A.M. the court instructed the jury to continue deliberations. At 3:00 A.M. the court sent for the jury, but it then requested additional time and at 3:27 A.M. returned with a verdict. The defendant contends that the court should not have directed the jury to continue deliberations; however, the time and circumstances herein are not materially different from those in People v. Presley, 22 A.D.2d 151, 254 N.Y.S.2d 400, affd. without opn., 16 N.Y.2d 738, 262 N.Y.S.2d 113, 209...