People v. Harse
| Decision Date | 13 February 1979 |
| Citation | 413 N.Y.S.2d 603,98 Misc.2d 188 |
| Parties | The PEOPLE of the State of New York v. George W. HARSE, Jr., Defendant. |
| Court | New York County Court |
Upon the stipulation between the District Attorney and the attorney for the defendant, this Court has read the transcript of the grand jury proceedings which resulted in the indictment of the defendant on one count of Sodomy in the 1st degree and one count of Sexual Abuse in the 1st degree, and finds that the indictment is defective as hereinafter set forth.
The transcript of the Grand Jury proceedings establishes that no evidence of penetration was submitted and that in response to a direct inquiry from a juror on that issue, the Grand Jury was specifically advised that penetration was not required to support a charge of Sodomy in the 1st degree. This Court does not agree.
The only case which appears to have directly considered the question of the necessity of penetration to support a charge of Sodomy under the new penal law held, without discussion, that such evidence was necessary. (People v. Bercowitz, 61 Misc.2d 974, 308 N.Y.S.2d 1). The statute defining "deviate sexual intercourse", an element of the crime of Sodomy in the 1st degree (Penal Law § 130.50), provides that it is "sexual conduct . . . consisting of contact between the penis and the anus, the mouth and penis . . . ." but does not specify the extent of the contact required. It is this language that has led the author of one text to conclude that evidence of penetration may no longer be required in these cases. (8 New York Criminal Practice § 70.3(1). However, the very phrase "deviate sexual intercourse" incorporates the term "sexual intercourse" which is defined as including the necessity of penetration (Penal Law § 130.00, subd. 1). If the legislature had intended to eliminate the requirement of penetration in sodomy cases, they could have used a phrase such as "deviate sexual conduct" or any other phrase which did not include the concept of "sexual intercourse".
This conclusion is supported by the fact that under the former penal code it was well established that the crime of Sodomy required proof of penetration. (People v. Spry, 5 A.D.2d 835, 170 N.Y.S.2d 722; see People v. Randall, 9 N.Y.2d 413, 214 N.Y.S.2d 417, 174 N.E.2d 507). In this light it is important to note that both the commission staff notes to the revised penal code and the practice commentaries indicate that no major substantive change in this area was made in the former penal law, and that the commission staff notes merely indicate that the definition of "deviate sexual intercourse" was generally derived from the existing law. (See Hechtman Practice Commentary, McKinney's Cons. Laws of N.Y., Book 39, Article 130; Commission Staff Notes to Proposed Penal Law, Article 135 and § 135.00) If the legislature had intended to change the law in this area, some mention of that change would have appeared in the commission notes or some phrase other than "deviate sexual intercourse" which incorporates the term "sexual intercourse", would have been used.
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People v. Griffith
...v. Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584, 407 N.E.2d 430). Despite some trial court opinions to the contrary (see People v. Harse, 98 Misc.2d 188, 413 N.Y.S.2d 603; People v. Bercowitz, 61 Misc.2d 974, 308 N.Y.S.2d 1), we hold that penetration is not an element of sodomy. Sodomy is define......