People v. Radunovic

• Decision Date: 28 December 1967
• Citation: 21 N.Y.2d 186,287 N.Y.S.2d 33,234 N.E.2d 212
• Court: New York Court of Appeals Court of Appeals
• Parties: , 234 N.E.2d 212 The PEOPLE of the State of New York, Respondent, v. Milan RADUNOVIC, Appellant. The PEOPLE of the State of New York, Appellant, v. Michael SIGISMONDI, Respondent. The PEOPLE of the State of New York, Respondent, v. Louis ROCCAFORTE, Appellant.

Page 33

287 N.Y.S.2d 33

21 N.Y.2d 186, 234 N.E.2d 212

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

The PEOPLE of the State of New York, Appellant, v. Michael SIGISMONDI, Respondent.

The PEOPLE of the State of New York, Respondent, v. Louis ROCCAFORTE, Appellant.

Court of Appeals of New York.

Dec. 28, 1967.

Leon Silvert, Brooklyn, for appellant in the first above-entitled action.

Frank S. Hogan, Dist. Atty. (Michael Juviler and H. Richard Uviller, New York City, of counsel), for respondent in the first above-entitled action.

Thomas J. Mackell, Dist. Atty. (Jerrold I. Ehrlich, New York City, of counsel), for appellant in the second above-entitled action.

Robert N. Bressler and Frank L. Corrado, Kew Gardens, for respondent in the second above-entitled action.

Frnak A. Lopez and Theodore Rosenberg, Brooklyn, for appellant in the third above-entitled action.

Thomas J. Mackell, Dist. Atty. (Jerrold I. Ehrlich, New York City, of counsel), for respondent in the third above-entitled action.

VAN VOORHIS, Judge.

Two of these three criminal prosecutions involve the crime of assault in the third degree. Radunovic and Roccaforte stand convicted of that crime and are appellants in this court. Sigismondi's indictment was dismissed upon motion and the People appeal. He was indicted on two counts for assault in the second degree and upon a third count of possessing a dangerous weapon. In each instance the intermediate appellate court affirmed the disposition made by the trial court. Each concerns whether corroboration is required of the testimony of a female that there was a completed act of rape, in instances where the People have elected to prosecute on the basis of a crime ostensibly unrelated to a charge of rape or where the jury has found a defendant guilty of an unrelated crime upon evidence which, if believed, would render the accused guilty of rape or assault with attempt to commit rape. The Legislature has currently provided that corroboration of the testimony of complainant is required to sustain charges of adultery and incest (Penal Law, Consol.Laws, c. 40, § 255.30), promoting prostitution (id., § 230.35) and of the sexual offenses punishable under article 130 of the Penal Law (§ 130.15) which include sexual misconduct (§ 130.20), rape (§§ 130.25, 130.30, 130.35), sodomy (§§ 130.40, 130.45, 130.50) and sexual abuse in the first and second degrees (§§ 130.60, 130.65). This well-defined legislative policy has been extended by the courts to endangering the health and morals of a minor, assault with intent to commit rape and attempted rape where the charge is supported by evidence of a consummated rape (People v. Lo Verde, 7 N.Y.2d 114, 195 N.Y.S.2d 835, 164 N.E.2d 102; People v. English, 16 N.Y.2d 719, 262 N.Y.S.2d 104, 209 N.E.2d 722 and People v. Colon, 16 N.Y.2d 988, 265 N.Y.S.2d 653, 212 N.E.2d 891). Wigmore cites many instances to prove the needfulness of these rules (3 Wigmore, Evidence (3d ed.), § 924a). If this were not the rule, then it would be easy for a prosecutor or a Grand Jury to evade the requirement of corroboration by charging assault with intent to commit rape or third degree assault.

In each of these appeals there is no evidence of assault except the testimony of the woman as to a consummated rape.

Where the statutory requirement of corroboration applied under the former rape statute (former Penal Law, § 2013), the corroboration must extend to every material fact essential to constitute the crime (People v. Page, 162 N.Y. 272, 274--275, 56 N.E. 750, 751--752; People v. Croes, 285 N.Y. 279, 34 N.E.2d 320). The bruise on the thigh of the complainant in the Radunovic case, and the fact that the woman had consulted her obstetrician, soon before the alleged assault, who had found her hymen intact and then consulted him afterward only to discover cover that it had been broken, do not constitute sufficient corroboration of her testimony that she was raped by that defendant. In the Roccaforte case there is even less evidence of corroboration. The indictment in the Sigismondi case which was dismissed on motion does not refer to rape but, as was said by Criminal Term (49 Misc.2d 1, 8, 266 N.Y.S.2d 724, 731), the "rights of an accused may not be made to depend on the happenstance of draftsmanship", citing People v. Mussenden (308 N.Y. 558, 561, 127 N.E.2d 551, 553), and the testimony before the Grand Jury demonstrated that the only evidence of an assault which was before the Grand Jury consisted of testimony of the complaining witness that she had been raped and that the knife was only dangerous as a threat to cause her to submit to the rape to which she testified.

The Judgment appealed from in the Radunovic case should be reversed and the indictment dismissed.

The order in the Sigismondi case should be affirmed.

The judgment in the Roccaforte case should be reversed and the information dismissed.

BURKE, Judge (concurring).

I concur in the result reached by the majority for the reasons stated so well by Mr. Justice STEUER in his dissenting opinion in People v. Radunovic (27 A.D.2d 916, 917), and with the same reservations.

BREITEL, Judge (concurring).

I agree with the opinion by Judge VAN VOORHIS. I also agree that cases arising out of a sexual transaction or context involved a special peril of unreliable testimony on the part of the complainant, whether child or adult, male or female. The anomaly created by the applicable statutory rules is that if the assaultive offense does not culminate in a defined sexual transaction, corroboration is not required to establish the crime, although the peril of falsehood is just as great, if not greater (see People v. Colon, 16 N.Y.2d 988, 265 N.Y.S.2d 653, 212 N.E.2d 891). This is just as repellent to any sense of logic or justice as the device of prosecuting and convicting for the assaultive offense by suppressing the allegations or the proof of the culminated offense in order to avoid the requirement of corroboration. It makes no more sense to acquit a defendant who raped without an eyewitness and hold in one who attempted to rape without an eyewitness.

There is a serious difficulty in this area of criminal law. It is an immature jurisprudence that places reliance on corroboration, however unreliable the corroboration itself is, and rejects overwhelming reliable proof because it lacks corroboration, however slight and however technical even to the point of token satisfaction of the rule. Quite often the corroboration supplied under the various rules in criminal law, and particularly in the sex cases, is weak indeed and supplies only a formalistic bridge over a very real and profound discomfort in such cases because of the many motivational or quasi-pathological reasons for distortion of the facts.

Indeed, Wigmore questioned the rationality of the corroboration requirement. Thus he said:

'a rule of law requiring corroboration has probably little actual influence upon the jurors' minds over and above that ordinary caution and suspicion which would naturally suggest itself for such charges; and the rule thus tends to become in practice merely a means of securing from the trial judge the utterance of a form of words which may chance to be erroneous and to lay the foundation for a new trial. Finally, the purpose of the rule is already completely attained by the judge's power to set aside a verdict upon insufficient evidence, and under this power verdicts are constantly set aside, in jurisdictions having no statutory rule, upon the same evidence which in other jurisdictions would be insufficient under the statutory rule requiring corroboration.

'The fact is that, in the light of modern psychology, this technical rule of corroboration seems but a crude and childish measure, if it be relied upon as an adequate means for determining the credibility of the complaining witness in such charges. The problem of estimating the veracity of feminine testimony in complaints against masculine offenders is baffling enough to the experienced psychologist. This statutory rule is unfortunate in that it tends to produce reliance upon a rule of thumb.' (7 Wigmore, Evidence (3d ed.), § 2061, pp. 354--355.)

The Radunovic case in this group before the court is a prime example. The evidence of the People was all but overwhelming, but lacked technical corroboration. Defendant's testimony supported much of complainant's version. He admitted presence and sexual byplay. His denial of intercourse was on the whole record utterly incredible. Nevertheless, testimony of a victim of unquestioned professional standing bearing bruises on her thighs from defendant's assaults, and bruises on her elbows when she fell to the floor in her struggle, confirmed by medical testimony as to her virginal status before the assault, must be rejected for lack of corroboration, anyone's corroboration. At the same time, defendant admits all but the use of force, and the consummation of his wishes. Yet he told the police officer on arrest that the trouble arose from the demand by this school teacher victim that she be paid $15 for her favors, and that he had then kicked her out. It is difficult for a layman to understand such a result and it is just about as difficult for a lawyer.

A better principle, if the anomalous statutes did not control, would be that which obtains in many other areas of law where serious charges or claims can be made freely, the motivation for falsehood or occasion for...