People v. Fludd
| Decision Date | 11 June 1979 |
| Parties | The PEOPLE, etc., Respondent, v. Franklin FLUDD, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Julia Pamela Heit, New York City, for appellant.
Eugene Gold, Dist. Atty., Brooklyn (William Gurin, Brooklyn, of counsel), for respondent.
Before HOPKINS, J. P., and TITONE, O'CONNOR and COHALAN, JJ.
The Defendant stands convicted, after a jury trial, of robbery in the first degree, rape in the first degree, and grand larceny in the third degree. In our opinion, the defendant was denied a fair trial by a number of errors committed by the trial court in its charge to the jury and the judgment must therefore be reversed and a new trial ordered.
Defendant, Franklin Fludd, was charged in a 1973 indictment with robbery in the first degree (three counts), grand larceny in the third degree (two counts), kidnapping in the second degree, rape in the first degree, sexual abuse in the first degree, and sexual misconduct. These charges stemmed from two separate incidents which allegedly occurred on the night of November 23, 1973, and in the early morning hours of the next day. At 9:30 P.M. on November 23, appellant allegedly forcibly stole a 1965 Dodge sedan from one Agbolade Ogungbe at Pulaski Street between Marcy and Tompkins Avenue, Brooklyn, New York. He then was alleged to have proceeded to pick up the female complainant in the vicinity of Kings County Hospital, at approximately 2:00 A.M. on November 24, and drive her to a location on Nostrand Avenue, also in Brooklyn, where he allegedly raped and robbed her at gunpoint.
With respect to the instruction to the jury on the crime of rape in the first degree, the trial court stated, Inter alia :
Respondent correctly states that under the 1972 amendment (L. 1972, ch. 373) to former section 130.15 of the Penal Law, requiring corroboration in sex offenses, and under which defendant was tried, corroborative evidence was required to extend only to an "attempt" to engage in the alleged sexual conduct in order to establish the consummated crime. However, independent of any need for corroborative proof and contrary to the language of the trial court underscored above, fundamentally it is essential that some evidence be adduced of the consummation of the crime of rape, which in most instances is elicited from the testimony of the victim herself. The statement of the trial court that no proof of consummation need be adduced of the alleged offense, in connection with its instruction on corroboration, was contradictory and may well have confused the jury.
Errors were also committed by the trial court in its charge regarding defendant's alibi. First, the trial court stated: "Evidence with relation to an alibi must be more carefully scrutinized." While such charge is not improper per se, the trial court should also have given a like charge with respect to identification testimony so that balance would be properly preserved (see People v. Annis, 48 A.D.2d 622, 623, ...
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