People v. Dunn
| Decision Date | 26 May 1994 |
| Citation | 612 N.Y.S.2d 266,204 A.D.2d 919 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Nichole L. DUNN, Also Known As Nichole L. Dickenson, Appellant. |
| Court | New York Supreme Court — Appellate Division |
K.C. Garn, Lake Huntington, for appellant.
Robert Winn, Dist. Atty. (Nancy Lynn Ferrini, of counsel), Hudson Falls, for respondent.
Before CARDONA, P.J., and WHITE, CASEY, WEISS and PETERS, JJ.
Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered May 11, 1993, upon a verdict convicting defendant of the crimes of rape in the first degree (three counts), sexual abuse in the first degree (five counts) and sodomy in the first degree.
During the winter of 1988-1989 defendant, then a 20-year-old woman, was an occasional babysitter for the three sons, aged 7, 5 and 2 1/2 years, of a family that lived in the Town of Argyle, Washington County. It was not until 1992 that the children's parents were made aware of various sex crimes involving the children committed by defendant alone and in conjunction with others. The parents notified the child abuse hotline and a State Police investigator interviewed defendant at her residence and at the State Police Barracks, where she provided a written statement. As a consequence, defendant was arrested for sexual abuse and after further investigation was charged with several counts of that crime, rape in the first degree and sodomy in the first degree.
After a jury trial defendant was convicted of three counts of rape in the first degree (as charged in counts 1, 3 and 5 of the indictment), five counts of sexual abuse in the first degree (as charged in counts 2, 4, 7, 9 and 10) and one count of sodomy in the first degree (as charged in count 6). The sentence imposed on defendant totaled an aggregate term of incarceration of 29 2/3 to 89 years. Defendant appeals.
Initially, defendant challenges the legal sufficiency of the evidence as to her conviction under counts 1, 3, 5 and 6 of the indictment. Viewing the evidence in a light most favorable to the People (see, People v. June, 183 A.D.2d 960, 961, 583 N.Y.S.2d 566, lv. denied 80 N.Y.2d 905, 588 N.Y.S.2d 830, 602 N.E.2d 238), we agree that the People failed to produce legally sufficient evidence regarding the element of sexual intercourse required for rape in the first degree (see, Penal Law § 130.35). The testimony of the eldest of the children, who was the alleged victim of these crimes, mentions only "touching" and fails to establish that any "penetration" occurred, as required by Penal Law § 130.00(1). Lacking other evidence, such as medical testimony or admissions by defendant of sexual intercourse, the People failed to satisfy their burden (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672) as to the three counts of rape in the first degree charged in counts 1, 3 and 5 of the indictment. Defendant's convictions on these three counts must be reversed and counts 1, 3 and 5 of the indictment must be dismissed.
A similar result is required with respect to defendant's conviction of sodomy in the first degree under count 6 of the indictment. This count charges defendant on an accomplice theory of liability (see, Penal Law § 20.00) with an act of sodomy. The actual perpetrator of the crime was the child's uncle. Count 6 of the indictment alleges that defendant "did push on the backside of [the uncle], forcing [the uncle's] penis into the victim's anus". The proof does not, however, support the crime as charged. The victim merely testified to defendant's pushing his uncle toward him. The testimony is, therefore, legally insufficient to support the crime as it is charged in count 6 of the indictment. Accordingly, this conviction must also be reversed and count 6 dismissed (see, People v. Bleakley, supra ).
As to defendant's claim that the time period of the crimes was not sufficiently particular, we find no merit. The indictment set forth a time span sufficient to apprise defendant of the relevant period of the commission of the alleged crimes, considering the type and nature of the crimes charged, the tender ages of the victims and other relevant factors (see, People v. Watt, 81 N.Y.2d 772, 774-775, 593 N.Y.S.2d 782, 609 N.E.2d 135; People v. Keindl, 68 N.Y.2d 410, 419, 509 N.Y.S.2d 790, 502 N.E.2d 577; People v. Morris, 61 N.Y.2d 290, 295-296, 473 N.Y.S.2d 769, 461 N.E.2d 1256). Defendant claims that the...
To continue reading
Request your trial
-
People v. Pendell
...evidentiary argument he now raises on appeal (see People v. Edwards, 39 A.D.3d 1078, 1080–1081, 834 N.Y.S.2d 575 [2007] ; People v. Dunn, 204 A.D.2d 919, 920–921, 612 N.Y.S.2d 266 [1994], lvs denied 84 N.Y.2d 907, 621 N.Y.S.2d 524, 645 N.E.2d 1224 [1994] ).4 The EZ–Pass records also corrobo......
-
People v. Brown
...( see People v. Rodriguez, 284 A.D.2d 952, 728 N.Y.S.2d 597, lv. denied 96 N.Y.2d 924, 732 N.Y.S.2d 641, 758 N.E.2d 667; People v. Dunn, 204 A.D.2d 919, 920–921, 612 N.Y.S.2d 266, lv. denied 84 N.Y.2d 907, 621 N.Y.S.2d 524, 645 N.E.2d 1224). In any event, that contention is without merit. W......
-
People v. Burdo
...828, 725 N.Y.S.2d 102 [3d Dept. 2001], lv denied 96 N.Y.2d 925, 732 N.Y.S.2d 642, 758 N.E.2d 668 [2001] ; cf. People v. Dunn, 204 A.D.2d 919, 920, 612 N.Y.S.2d 266 [3d Dept. 1994], lv denied 84 N.Y.2d 907, 621 N.Y.S.2d 524, 645 N.E.2d 1224 [1994]). Nevertheless, "evidence that a victim of s......
-
People v. Washington
...denied him a fair trial and due process of law are unpreserved for our review since they were not raised at trial (see, People v. Dunn, 204 A.D.2d 919, 612 N.Y.S.2d 266, lv denied 84 N.Y.2d 907, 621 N.Y.S.2d 524, 645 N.E.2d 1224; see also, CPL 470.05[2] ). We therefore need not address defe......