People v. Prudent
| Citation | 143 Misc.2d 50,539 N.Y.S.2d 651 |
| Parties | PEOPLE of the State of New York v. Gardel PRUDENT, Defendant. |
| Decision Date | 14 March 1989 |
| Court | New York City Court |
Elizabeth Holtzman, Dist. Atty., Asst. Dist. Atty. Jo B. Levinson of the Kings County Dist. Attorney's Office, for the People.
Susan Sevin of the Legal Aid Society's Brooklyn Office, for defendant.
The defendant is charged with Attempted Sexual Misconduct, Sexual Misconduct and Sexual Abuse in the Third Degree in violation of sections 110.00 et seq./130.20, and 130.55 of the Penal Law.
He has made this motion to have the accusatory instrument dismissed alleging that it is jurisdictionally defective. The defendant contends that pursuant to CPL § 130.00(2) and (4) the crimes charged require the People to prove that the parties are not married to each other. Since they are in fact legally married and were living together in their marital abode at the time of the alleged conduct, the defendant feels he is immune from this prosecution.
The factual portion of the accusatory instrument evidences a forcible sexual attack on the complainant by her husband, the defendant, which resulted in sexual intercourse and attempted sodomy. Although it would appear that the People could have chosen to prosecute for forcible rape their decision to proceed on the misdemeanor charges is entirely within their discretion, People v. Eboli, 34 N.Y.2d 281, 357 N.Y.S.2d 435, 313 N.E.2d 746.
In People v. Liberta, 64 N.Y.2d 152, 485 N.Y.S.2d 207, 474 N.E.2d 567, the Court of Appeals eliminated this so called "marital exception" for the crimes of Rape in the First Degree and Sodomy in the First Degree. See also, People v. De Stefano, 121 Misc.2d 113, 467 N.Y.S.2d 506. While the New York State Legislature has not yet amended the statutes to reflect the current state of the law, the federal courts have upheld its constitutionality, Liberta v. Kelly, 2nd Cir., 839 F.2d 77, 657 F.Supp. 1260. The defendant acknowledges Liberta's effect on the Rape and Sodomy statutes but argues that its scope is limited thereto.
The Court of Appeals was concerned with extending the protection of the criminal statutes before it to any person who might become the victim of a forcible sexual attack, Liberta supra, 64 N.Y.2d at 172, 485 N.Y.S.2d 207, 474 N.E.2d 567.
The crimes charged herein require proof that the acts complained of were committed without the consent of the victim. This court finds that...
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People v. Horvath
... ... Sexual abuse by forcible compulsion constitutes a "violent [sexual] assault" (People v. Liberta, supra, at 165, 485 N.Y.S.2d 207, 474 N.E.2d 567) and therefore, like forcible rape or sodomy, is a criminal act regardless of the relationship between the actor and the victim (see, People v. Prudent, 143 Misc.2d 50, 539 N.Y.S.2d 651; Donnino, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law article 130, at 568) ... The defendant further contends that the victim's testimony, upon which this case turned, was not worthy of belief. However, resolution of ... ...
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Overcoming barriers in communities.
...AND TREATMENT 85-103 (Rafael Art. Javier ed., 1996) (discussing the attributes of the Chinese-American family). (57.) People v. Prudent, 539 N.Y.S.2d 651 (1989) (abolishing the marital exception from other sexual offenses); People v. Liberta, 474 N.E.2d 567 (N.Y. Ct. App 1984) (abolishing t......