People v. Grady

• Citation: 413 N.Y.S.2d 995,98 Misc.2d 473
• Court: New York County Court
• Decision Date: 20 February 1979
• Parties: The PEOPLE of the State of New York v. Frank GRADY, Defendant.

Page 995

413 N.Y.S.2d 995

98 Misc.2d 473

The PEOPLE of the State of New York v. Frank GRADY, Defendant.

Albany County Court.

Feb. 20, 1979.

Sol Greenberg, Dist. Atty., Colin J. Kenneally, Asst. Dist. Atty. (of counsel), for the People.

Douglas P. Rutnik, Public Defender, Thomas A. Breslin, Asst. Public Defender (of counsel), for defendant.

JOSEPH HARRIS, Judge.

Defendant stands indicted for two counts of sodomy in the third degree upon one J.P., three counts of sodomy in the third degree upon one C.V., and one count of sexual abuse in the second degree upon one L.G. The sodomy counts are Class E felonies and the sexual abuse count is a Class A misdemeanor. All counts are "statutory" in nature, in that lack of consent is based upon the fact of infancy, J.P. having been 16 years of age at the time of the incidents involving him, C.V. having been 14 years of age, and L.G., 13 years old.

Defendant has moved to dismiss the indictment upon the grounds of insufficient legal evidence before the grand jury to corroborate the testimony of the alleged victims as required by Section 130.16 of the Penal Law.

Penal Law, Section 130.16, reads as follows:

"Section 130.16 Sex Offenses; Corroboration

A person shall not be convicted of consensual sodomy, or an attempt to commit the same, or of any offense defined in this article of which lack of consent is an element but results solely from incapacity to consent because of the alleged victim's age, mental defect, or mental incapacity, or an attempt to commit the same, solely on the testimony of the alleged victim, unsupported by other evidence tending to:

(a) Establish that an attempt was made to engage the alleged victim in sexual intercourse, deviate sexual intercourse, or sexual contact, as the case may be, at the time of the alleged occurrence; and

(b) Connect the defendant with the commission of the offense or attempted offense."

The corroboration requirement in this case is an anomaly. While it might serve a useful purpose where the complainant is a child of tender years, it may be subvertive of justice in cases such as this one where the complainants are teen-age boys, under the age of 17, whose testimony can be readily measured by a jury by application of the same standards and rules of credibility used to weigh the testimony of older witnesses for whom corroboration is not required.

Indeed the illogic becomes more evident when one considers that corroboration of the testimony of teen-age complainants under the age of 17 is not required for forcible sex offenses or for non-sex offenses. If the complainants in this case had alleged against the defendant acts of forcible sodomy indeed, if they had charged him with attempted murder both offenses punishable by imprisonment for 25 years as against 7 years for the statutory charges here in fact alleged the jury would be free to believe or disbelieve the testimony of the complainants and to convict or acquit the defendant on that testimony alone, the same as it does with older complainants.

At common law the testimony of any victim of any sex offense, male or female, was not required to be corroborated. Such testimony alone was sufficient to support a conviction (7 Wigmore, Evidence (3rd ed.), Section 2061). The requirement of corroboration, that is, the necessity to produce independent evidence supporting the testimony of the alleged victim, is of statutory origin, and it is only very recently that it was required at all in cases of sodomy, either forcible or statutory. (See dissenting opinion, Burke, J., People v. Porcaro, 6 N.Y.2d 248, 253, 189 N.Y.S.2d 194, 197, 160 N.E.2d 488, 490; People v. Oyola, 6 N.Y.2d 259, 189 N.Y.S.2d 203, 160 N.E.2d 494.)

Illicit sexual acts are usually performed in secret, out of the view of corroborating witnesses. In cases of both anal and oral sodomy there is little chance, if any, of obtaining corroborative physical evidence.

The original justification for the corroboration requirement in sex offense cases lies in the chauvinistic argument that women are prone to sexual fantasies and given to "contriving false charges of sexual offenses by men." The great proponent of this argument was the celebrated and otherwise rightfully distinguished Professor John Henry Wigmore the author of the classic ten volume work entitled "A Treatise on the Anglo-American System of Evidence in Trials at Common Law." (3 Wigmore, Evidence (3rd ed.), p. 459).

This argument was discredited by the Laws of 1974 which repealed Penal Law, Section 130.15, and enacted Penal Law, Section 130.16:

"Furthermore, the implicit suggestion in the corroboration rule that the testimony of women, who are most often complainants in sex cases, is inherently suspect and should not be trusted without the support of the independent evidence, is without justification and contrary to our strong belief in the principle of complete equality for women in our society." (Governor's Approval Memorandum No. 2, February 19, 1974).

Section 130.16 did away with the corroboration requirement for forcible sex offense charges but retained it for the statutory sex offenses, those where lack of consent is an element but results solely from incapacity to consent because of the alleged victim's age, mental defect, or mental incapacity. Thus the new section purported to do away with sex discrimination by making no distinction with respect to the probable trustworthiness of the alleged victim based upon sex, and to take cognizance only of the age and mental condition of the alleged victim regardless of sex.

Nevertheless, sex discrimination remains, for the only corroboration requirement in the law based on the nature of the offense is that required for the sex offenses and offenses related thereto. There is no corroboration requirement for attempted homicides, assaults, robberies, or burglaries. For these serious crimes the regular rules of credibility and the standard of reasonable doubt seem sufficient. But not for sex offenses! And now superimposed upon the sex discrimination inherent in the existence of Penal Law 130.16 is an unwarranted age discrimination that makes courts go to great and tortuous cerebral gymnastics to satisfy an unnecessary corroboration requirement that often results in heinous and vicious sexual assaults upon children going unpunished when the regular rules of credibility and the standard of reasonable doubt would suffice, as it does in the case of other serious but non-sexual offenses.

And how degrading it is that teen-agers under the age of 17 years, who have been sexually assaulted, are lumped together, as far as their trustworthiness is concerned, with mental defectives and mental deficients. They can themselves be held criminally responsible for many serious violations of the penal law and convicted upon the uncorroborated testimony of others, but when they themselves are victims of certain sexual assaults they are deemed untrustworthy.

Indeed it may be that Penal Law 130.16 violates the constitutional right of teen-agers under the age of 17 years to the equal protection of the laws. Inasmuch as the court has in fact found sufficient corroboration in this case to satisfy Penal Law 130.16 it is not necessary to reach this constitutional issue. However, in any event it would be preferable for the legislature to take the initiative to remedy this inequitable situation.

The evidence shows that J.P., C.V., and L.G. were each, at the time of the offenses charged herein, residents of a certain group home for young boys in the City of Albany, and each was known to the other.

J.P. testified that in December, 1977, he was approached by the defendant at a doughnut shop in the City of Albany and asked by him to go to the defendant's apartment. He visited the defendant's apartment several times and on the date alleged in the indictment, December 29, 1977, the defendant performed upon complainant J.P. several acts of deviate sexual intercourse, both anal and oral.

J.P. further testified that the defendant kept "bugging" him to bring complainant C.V. to the apartment so that he, defendant, could commit an act of anal intercourse upon said C.V. ¹ Ultimately J.P. complied and brought C.V. to defendant's apartment.

C.V. testified that he was brought to the defendant's apartment by J.P. sometime prior to August, 1978. On or about the dates alleged in the indictment, August 25, 29, and 30, 1978, the defendant performed upon C.V. several acts of deviate sexual intercourse, both anal and oral.

L.G. testified that he was brought to the defendant's apartment by C.V. On or about September 1, 1978, the defendant attempted to commit an act of anal intercourse upon L.G.

The evidence was not well developed in the grand jury presentation. It is not clear whether any person other than the defendant and the respective alleged victim was present at the time of any of the alleged acts of sodomy, However, the court feels that in each case there was sufficient evidence to satisfy the corroboration requirement and to sustain the indictment and each count thereof.

There is clearly no problem with the three counts relating to sodomy upon complainant C.V. Corroboration is readily and sufficiently supplied by the testimony of J.P. that the defendant persistently requested him to bring C.V. to the defendant's apartment so that defendant could perform upon C.V. an act of anal intercourse, followed by J.P.'s bringing C.V. to the apartment, followed by C.V.'s testimony of execution by the defendant of the threatened act.

A threat to do an act is some evidence that the act threatened was attempted or accomplished (People v. Jones, 99 N.Y. 667, 2 N.E. 49; People v. O'Sullivan, 104 N.Y. 481, 10 N.E. 880; Richardson on Evidence, 10th Ed., Section 166).

There is a little more difficulty in the cases involving J.P. and L.G. However, even here the court feels there is sufficient corroboration. It must be remembered that the corroboration rule set...