People v. Naylor

• Citation: 609 N.Y.S.2d 954,196 A.D.2d 320
• Parties: The PEOPLE of the State of New York, Respondent, v. Jamie R. NAYLOR, Appellant.
• Decision Date: 07 April 1994
• Court: New York Supreme Court — Appellate Division

Page 954

609 N.Y.S.2d 954

196 A.D.2d 320

The PEOPLE of the State of New York, Respondent, v. Jamie R. NAYLOR, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 7, 1994.

Michael P. Graven, Owego, for appellant.

Robert J. Simpson, Dist. Atty., Owego, for respondent.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and PETERS, JJ.

YESAWICH, Justice.

Appeal from a judgment of the County Court of Tioga County (Andrew F. Siedlecki, J.), rendered March 20, 1992, upon a verdict convicting defendant of the crimes of burglary in the second degree and sexual abuse in the third degree.

Defendant's indictment stems from an incident in which he broke into his estranged wife's apartment, while she was sleeping, and proceeded to fondle her breasts and genitals. On appeal, defendant contends that his conviction for sexual abuse in the third degree was improper because the victim and defendant were married and not legally separated at the time of the occurrence (see, Penal Law § 130.00[4]. Inasmuch as defendant was convicted of sexual abuse in the third degree, for which forcible compulsion need not be proven (see, Penal Law § 130.05[1] [2][c]; § 130.55)--notably, here, the jury was specifically instructed, at the People's request, that if the victim had "not expressly or impliedly acquiesc[ed] in the defendant's conduct", a guilty verdict could be returned--it is necessary to determine whether the "marital exemption" for sex crimes applies. That exemption has already been declared unconstitutional when offenses in which forcible compulsion (e.g., rape, sodomy) is an element are implicated (see, People v. Liberta, 64 N.Y.2d 152, 163-167, 485 N.Y.S.2d 207, 474 N.E.2d 567, cert. denied, 471 U.S. 1020, 105 S.Ct. 2029, 85 L.Ed.2d 310; People v. Horvath, 183 A.D.2d 915, 916, 584 N.Y.S.2d 148, lv. denied, 80 N.Y.2d 832, 587 N.Y.S.2d 917, 600 N.E.2d 644). At issue is whether the marital exemption is also inapplicable to a crime which does not have force as a predicate, but is based upon lack of consent alone. We find that it is inapplicable, at least under the circumstances herein.

The Court of Appeals anchored its holding in People v. Liberta, supra, on, inter alia, a finding that it was "irrational and absurd" to imply consent to a violent, degrading act such as forcible rape (id., at 164, 485 N.Y.S.2d 207, 474 N.E.2d 567); likewise, where, as here, the parties have taken up separate residences, have both become involved in new intimate relationships, and have taken steps toward dissolving their marriage, ¹ it is unreasonable if not fatuous to assume that the existence of what in reality is a wholly fictive marriage relationship furnishes a sufficient basis from which consent to unsolicited sexual touching may be implied. As the Court of Appeals noted in Liberta, "[a] married woman has the same right to control her own body as does an unmarried woman" (id.). Given the analysis and direction of the Liberta decision, recognizing that any person, married or not, has the right to refuse forcibly compelled sexual intercourse, logical interpretation of that right necessarily encompasses an estranged partner's right to be free from unwanted sexual touching, for the concerns which motivated the Court of Appeals to strike down the marital exemption in rape cases (see, id., at 164-167, 485 N.Y.S.2d 207, 474 N.E.2d 567) are equally present in such circumstances. There being no rational basis for exempting from criminal liability acts which would otherwise constitute sexual abuse in the third degree, solely on the grounds that the perpetrator and victim are technically legally married, defendant's conviction was not improper.

Notwithstanding defendant's contrary view, we do not find County Court's Sandoval ruling, that defendant's prior convictions for grand larceny, burglary and rape could be used to impeach his testimony should he choose to take the stand, erroneous. Neither the fact that the convictions for burglary and rape involved similar crimes to those charged herein, nor the fact that those convictions were...