People v. Reilly

• Decision Date: 15 January 1976
• Citation: 85 Misc.2d 702,381 N.Y.S.2d 732
• Parties: The PEOPLE of the State of New York v. James A. REILLY, Jr., Defendant.
• Court: New York County Court

Page 732

381 N.Y.S.2d 732

85 Misc.2d 702

The PEOPLE of the State of New York v. James A. REILLY, Jr., Defendant.

Westchester County Court.

Jan. 15, 1976.

Carl A. Vergari, Dist. Atty., White Plains, for the People.

Phillip A. J. Giangrande, White Plains, for defendant.

ISAAC RUBIN, Judge.

The defendant is charged in Count 1 of the Indictment with Rape in the First Degree, and in Count 2, with Sodomy in the First Degree. He is also charged in two additional Counts with Burglary in the Second Degree, and Petit Larceny.

As a branch of his omnibus motion, he moves to dismiss the first and second counts, to wit, the charges of first degree rape and first degree sodomy, pursuant to the provisions of CPL 210.20, on the grounds that said counts are 'defective' within the meaning of CPL 210.25(3) in that the statutes defining the offenses charged are unconstitutional.

The Court shall consider each of these contentions separately.

1. Is the Rape Statute Unconstitutional?

The rape statute states in relevant part:

'130.35. Rape in the first degree. A Male is guilty of rape in the first degree when he engages in sexual intercourse with a Female;

1. By forcible compulsion.' (Emphasis supplied.)

The defendant asserts that the statute by its singular reference to 'male' treats rape as a masculine crime, and that a female can only be the victim of a rape, and not the perpetrator. He thus claims that because of his sex, the statute, by excluding from its prohibition females, abridges his constitutional right to the equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution, and Article I, Section 11 of the Constitution of the State of New York.

The People contend that obvious physiological differences betwen men and women call for different legislative treatment, and there is clearly a rational basis for the legislature to have limited the prohibition of this statute to males.

In considering the constitutionality of a statute, certain general rules must be applied:

The burden imposed upon one who asserts the invalidity of a legislative enactment is a heavy one, and courts strike a statute down only as a last unavoidable resort. (Mtr. of Pratt v. Tofany, 37 A.D.2d 854, 326 N.Y.S.2d 257; Mtr. of Van Berkel, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 878, 209 N.E.2d 539, 540.) In Defiance Milk Products Co. v. Du Mond (309 N.Y. 537, 540--541, 132 N.E.2d 829, 830) it was held:

'Every legislative enactment carries a strong presumption of constitutionality, including the rebuttable presumption of the existence of necessary factual support for its provisions (Borden's Co. v. Baldwin, 293 U.S. 194, 209, 210, (55 S.Ct. 187, 79 L.Ed. 281)). If any state of facts, known or to be assumed, justify the law, the court's power of inquiry ends (United States v. Carolene Products Co., 304 U.S. 144, 154, (58 S.Ct. 778, 82 L.Ed. 1234)). Questions as to wisdom, need or appropriateness are for the Legislature (Olsen v. Nebraska, 313 U.S. 236, 246, (61 S.Ct. 862, 85 L.Ed. 1305)). Courts strike down statutes only as a last resort (Matter of Ahern v. South Buffalo Ry. Co., 303 N.Y. 545, 555, (104 N.E.2d 898, 903) aff'd 344 U.S. 367, (73 S.Ct. 340, 97 L.Ed. 395)) and only when unconstitutionality is shown beyond a reasonable doubt (Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 79 (31 S.Ct. 337, 55 L.Ed. 369); Matter of Fay, 291 N.Y. 198, 206, 207, (52 N.E.2d 97, 98)). But for all that, due process demands that a law be not unreasonable or arbitrary and that it be reasonably related and applied to some actual and manifest evil. (Matter of Jacobs, 98 N.Y. 98, 110; Fisher Co. v. Woods, 187 N.Y. 90, (79 N.E. 836, 12 L.R.A.,N.S., 707); Nebbia v. New York, 291 U.S. 502, (54 S.Ct. 505, 78 L.Ed. 940).)' See also, Matter of Pratt v. Tofany, supra.

Additionally, a court of original jurisdiction as is this Court, should not set aside a statute as unconstitutional except in the rare instance where life and liberty are involved and the invalidity of the statute is apparent on its face (National Psychological Ass'n v. University of the State of New York, 18 Misc.2d 722, 725--726, 188 N.Y.S.2d 151, 155--156; aff'd 10 A.D.2d 688, 199 N.Y.S.2d 423; aff'd 8 N.Y.2d 197, 203 N.Y.S.2d 821, 168 N.E.2d 649; app. dism. 365 U.S. 298, 81 S.Ct. 691, 5 L.Ed.2d 688), or the conclusion is inescapable (People v. Elkin, 196 Misc. 188, 80 N.Y.S.2d 525; Bohling v. Corsi, 204 Misc. 778, 127 N.Y.S.2d 591; aff'd 306 N.Y. 815, 118 N.E.2d 823). Otherwise, such constitutional question should be left for the Appellate Courts (City of New Rochelle v. Echo Bay Waterfront Corp., 182 Misc. 176, 46 N.Y.S.2d 645; aff'd 268 App.Div. 182, 49 N.Y.S.2d 673; aff'd 294 N.Y. 678, 60 N.E.2d 838).

The Fourteenth Amendment to the Federal Constitution provides that no State shall 'deny to any person within its jurisdiction the equal protection of the laws.' Essentially similar is the language of Article I, Sec. 11, of the New York Constitution, which states that 'No person shall be denied the equal protection of the laws of this state or any subdivision thereof.' The breadth of coverage afforded in this respect by the two constitutions is equal. (Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 87 N.E.2d 541, cert. den. 339 U.S. 981, 70 S.Ct. 1019, 94 L.Ed. 1385; 9 N.Y. Jur. Constitutional Law, Sec. 287.)

The concept of equal protection of the laws has not been, and is not, susceptible to precise definition. No hard and fast rules have been laid down, and each situation must be judged on its merits on an 'ad hoc' basis, in accordance with the above broad principles. In short, no test has been formulated which is infallible or all inclusive, and each case must be decided as it arises (Puget Sound Power & Light Co. v. King County, 264 U.S. 22, 44 S.Ct. 261, 68 L.Ed. 541; Louisville Gas & E Co. v. Coleman, 277 U.S. 32, 48 S.Ct. 423, 72 L.Ed. 770; O'Kane v. State, 283 N.Y. 439, 28 N.E.2d 905). Generally speaking, however, the essence of the right to equal protection of the laws is that all persons similarly situated be treated alike, and that no person or class of persons shall be denied the equal protection of the laws which is enjoyed by others in like circumstances (Kentucky Finance Corp. v. Paramount Auto Exchange Corp., 262 U.S. 544, 43 S.Ct. 636, 67 L.Ed. 1112). Stated differently, the rule is that the equal protection of the laws is not denied when all persons in the same class are treated alike under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed (Sacharoff v. Corsi, 294 N.Y. 305, 312, 62 N.E.2d 81, 84, cert. den. 326 U.S. 744, 66 S.Ct. 60, 90 L.Ed. 445; 9 N.Y. Jur., supra, Sec. 297, pg. 199).

In applying the Equal Protection Clause, it has been consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways as long as the classification is reasonable. (Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 30 L.Ed.2d 225; Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349; Farrington v. Pinckney, 1 N.Y.2d 74, 150 N.Y.S.2d 585, 133 N.E.2d 817.) However, classifications based upon sex, like classifications based upon race and national origin, are inherently suspect and must, therefore, be subjected to close judicial scrutiny (Reed v. Reed, supra, 404 U.S. at 75, 92 S.Ct. 251, 30 L.Ed.2d 225; Frontiero v. Richardson, 411 U.S. 677, 690, 93 S.Ct. 1764, 36 L.Ed.2d 583). But, a legislative classification will not be set aside if related to the objective of the statute, and if Any state of facts rationally justifying it is demonstrated, or can be conceived to support it, or perceived by the courts. (United States v. Maryland Savings Share Ins. Corp., 400 U.S. 4, 91 S.Ct. 16, 27 L.Ed.2d 4; Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491.)

In West Coast Hotel Company v. Parrish, 300 U.S. 379, 400, 57 S.Ct. 578, 585, 81 L.Ed. 703, the United States Supreme Court restated the familiar principle which has repeatedly been applied to legislation which singles out women, or particular classes of women, in the exercise of the State's protective power. It reiterated the parameters within which the Legislature may work in dealing with the Equal Protection Clause, as follows:

'The argument that the legislation in question constitutes an arbitrary discrimination, because it does not extend to men, is unavailing. This Court has frequently held that the legislative authority, acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach. The legislature 'is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.' If 'the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.' There is no 'doctrinaire requirement' that the legislation should be couched in all embracing terms.'

The test is not whether some inequality results from the classification (Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369), but whether there exists any reasonable basis to justify the classification (McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393).

Now, to sustain the defendant's contention, this Court must assume that the classification implicit in the statute is unreasonable, but the Court may not make such an assumption. The heavy burden is upon the defendant claiming that the classification is unreasonable and irrational to support that contention with facts which will overcome the presumption of constitutionality.

Defendant has only advanced argument to support his contention. The bare record herein does not support the facts upon which the contention rests. Additionally, there is nothing in this record upon which this Court can rely to conclude, as argued by defend...