People v. Radunovic

• Decision Date: 18 April 1967
• Citation: 27 A.D.2d 916,278 N.Y.S.2d 900
• Parties: The PEOPLE of the State of New York, Respondent, v. Milan RADUNOVIC, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 900

278 N.Y.S.2d 900

27 A.D.2d 916

The PEOPLE of the State of New York, Respondent, v. Milan RADUNOVIC, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

April 18, 1967.

M. Juviler, New York City, for respondent.

L. Silvert, Brooklyn, for defendant-appellant.

Before EAGER, J.P., and STEUER, CAPOZZOLI, RABIN and McNALLY, JJ.

PER CURIAM.

Judgment after jury trial and a verdict convicting the defendant of the crime of assault in the third degree, affirmed.

Defendant was indicted for assault in the second degree with intent to commit rape and for assault in the third degree. The Court correctly charged the jury that corroboration was unnecessary to convict the defendant of the misdemeanor charge of simple assault.

A charge of simple assault is distinct from one of felonious assault with intent to commit rape. Here there was overwhelming evidence of assault in the third degree--the bruises and abrasions on complainant's arms, leg and elbow, her distraught condition following the encounter, and the defendant's guilty fabrications when he was confronted with her accusations.

People v. Lo Verde, 7 N.Y.2d 114, 195 N.Y.S.2d 835, 164 N.E.2d 102, is inapplicable. There complainant was under 18 years of age. Defendant was indicted for first degree rape, assault with intent to commit rape, and endangering the health and morals of a minor. Defendant was acquitted of first degree rape. The assault count was dismissed. Defendant was found guilty of endangering the health and morals of a minor. The sole act charged in support of the morals count was the perpetration of an act of sexual intercourse, which constitutes misdemeanor rape (Penal Law, sec. 2010). The Court held that labeling the count otherwise did not serve to eliminate the requirement of corroboration where the sole act proved is statutory rape.

People v. English, 16 N.Y.2d 719, 262 N.Y.S.2d 104, 209 N.E.2d 722, is to the same effect. There the charges under consideration were assault with intent to commit rape and attempt to rape. The sole evidence was of an actual rape which it was held required corroboration. However, in People v. Colon, 16 N.Y.2d 988, 265 N.Y.S.2d 653, 212 N.E.2d 891, it was held if the defendant-appellant's acts amounted to an unconsummated attempt to rape apart from the rape charged against the co-defendant, the attempt charge would not require corroboration.

In the case at bar, the jury acquitted defendant of the charge of assault in the second degree with intent to commit rape. The verdict against the defendant on the separate count of simple assault is abundantly supported by evidence other than the sexual act, and the Court's charge thereon was proper. (Cf., however, People v. Sigismondi, 49 Misc.2d 1, 266 N.Y.S.2d 724.)

All concur except STEUER, J., who dissents in the following memorandum:

STEUER, Justice (dissenting):

I feel that I must dissent from the conclusion of the majority even though I believe that their determination represents a more just outcome and what I believe the law ought to be. The defendant was indicted on two counts: assault in the second degree with intent to commit rape, and assault in the third degree. He was acquitted on the first count and found guilty on the second count. The complainant, in support of the indictment, testified to a completed rape.

By statute, in a prosecution for rape the testimony of the complainant must be corroborated to sustain a conviction. This is not true in prosecutions for attempted rape or assault with intent to commit rape, and no corroborating evidence is required is such cases (People v. Chimino, 270 App.Div. 114, 58 N.Y.S.2d 844, affd. 296 N.Y. 554, 68 N.E.2d 863; People v. De Groat, 5 A.D.2d 1045, 173 N.Y.S.2d 169, affd. 5 N.Y.2d 947, 183 N.Y.S.2d 565; People v. Phillips, 204 App.Div. 112, 197 N.Y.S. 567, affd. on other grounds 235 N.Y. 579, 139 N.E. 742). Where, however, the proof of the act charged in the indictment reveals that that act is perpetration of an accomplished rape, corroboration is required no matter under what provision of the Penal Law the defendant is charged (People v. Lo Verde, 7 N.Y.2d 114, 195 N.Y.S.2d 835, 164 N.E.2d 102). 'Were we to hold that no corroboration was necessary to support the conviction of the crime as charged in this indictment, then a prosecutor might easily circumvent the requirement of corroboration necessary for a conviction of misdemeanor rape simply by charging instead the impairment of the morals of a minor, as he did...