People v. Katt

• Decision Date: 29 October 1962
• Citation: 234 N.Y.S.2d 988,17 A.D.2d 856
• Parties: The PEOPLE of the State of New York, Respondent, v. Herbert KATT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 988

234 N.Y.S.2d 988

17 A.D.2d 856

The PEOPLE of the State of New York, Respondent, v. Herbert KATT, Appellant.

Supreme Court, Appellate Division, Second Department.

Oct. 29, 1962.

Leon Goodman, Brooklyn, for appellant; Frank Serri, Brooklyn, of counsel.

Edward S. Silver, Dist. Atty., Brooklyn, for respondent; David Diamond, Brooklyn, of counsel.

Before BELDOCK, P. J., and KLEINFELD, CHRIST, HILL and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Court of Special Sessions of the City of New York, Borough of Brooklyn, rendered May 2, 1962 after a nonjury trial, convicting him of sodomy as a misdemeanor and imposing sentence (Penal Law, § 690).

Judgment reversed on the law; information dismissed; defendant discharged; and bail exonerated. No questions of fact were considered.

In the information the defendant, a male adult, is charged with carnally knowing another male adult 'by and with the mouth, under circumstances not amounting to Sodomy in the First Degree or Sodomy in the Second Degree.' The defendant's conviction is based on proof showing that he was a voluntary pathic participant in an act of oral sodomy. At the time of the commission of such act (September 28, 1961) and at the time of the trial and the adjudication of guilt (April 2, 1962), the voluntary participation of the pathic or fellator--the one who permits another's penis to be placed into his mouth--did not constitute a crime under section 690 of the Penal Law (People v. Randall, 9 N.Y.2d 413, 214 N.Y.S.2d 417, 174 N.E.2d 507, affg. 11 A.D.2d 270, 203 N.Y.S.2d 372; People v. Maggio, 16 A.D.2d 820, 228 N.Y.S.2d 791). Hence, as a matter of law, the judgment must be reversed and the information dismissed.

It may be noted, however, that seven days after this defendant was tried and found guilty, the Legislature amended section 690 of the Penal Law so as to abrogate the then existing distinction between the voluntary pathic participant or fellator and the other participant, and so as to render both equally guilty (L.1962, ch. 378, eff. April 9, 1962; Penal Law, § 690, subd. 5, as amd.). Although the defendant was not sentenced until May 2, 1962, nevertheless, since the amendment post-dated his trial and conviction, his rights must be determined without regard to the amendment (cf. People v. Blume, 12 N.Y.2d 705, 233 N.Y.S.2d 761, 186 N.E.2d 120, October 4, 1962; cf. People v. Konono, 9 N.Y.2d 924, 217 N.Y.S.2d 92, 176 N.E.2d 101).

Nor may defendant's conviction be sustained on the theory that in any event he voluntarily aided and abetted the other participant or invited the fellatorism, and thus committed a misdemeanor under sections 2, 27 and 1936 of the Penal Law. True, in the Randall case the defendant's conviction of a misdemeanor was upheld on that theory (see pp. 420-421 of 9 N.Y.2d, 422 of 214 N.Y.S.2d, 511 of 174 N.E.2d); but it was upheld because the indictment there specifically charged the defendant with having 'aided and abetted' the active participant in the sodomous act (see 11 A.D.2d 270, 203 N.Y.S.2d 372). Here, there is no such allegation or charge in the information. In the absence of such allegation or charge, the information may not now be enlarged to include it and to permit the defendant's conviction of a misdemeanor (cf. People v. McGuire, 5 N.Y.2d 523, 526, 186 N.Y.S.2d 250, 252, 158 N.E.2d 830, 832).

KLEINFELD, CHRIST, HILL and HOPKINS, JJ., concur.

BELDOCK, Presiding Justice, dissents and votes to affirm the judgment, with the following memorandum:

The majority interprets the Randa...