People v. Renna

• Decision Date: 10 July 1987
• Citation: 132 A.D.2d 981,518 N.Y.S.2d 511
• Parties: PEOPLE of the State of New York, Appellant, v. Steven RENNA, Scott Roath, Steven Farrington, Thomas Blessing, Michael Riley, and David Loyacano, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 511

518 N.Y.S.2d 511

132 A.D.2d 981

PEOPLE of the State of New York, Appellant, v. Steven RENNA, Scott Roath, Steven Farrington, Thomas Blessing, Michael Riley, and David Loyacano, Respondents.

Supreme Court, Appellate Division,

Fourth Department.

July 10, 1987.

Peter L. Broderick by Raymond Burgasser, Niagara County Dist. Atty., Lockport, for appellant.

George V.C. Muscato, Lockport, for respondent Renna.

Richard H. Speranza by Leonard Tilney, Lockport, for respondent Roath.

David C. Douglas, Lockport, for respondent Farrington.

Robert B. Sommerstein, Buffalo, for respondent Blessing.

Charles P. Ben, Lockport, for respondent Riley.

David R. Wendt, Lockport, for respondent Loyacano.

Before CALLAHAN, J.P., and DOERR, GREEN, PINE, LAWTON, JJ.

MEMORANDUM:

The court correctly determined that the evidence before the Grand Jury was legally insufficient to support two counts of aggravated sexual abuse (Penal Law § 130.70). Defendants were charged with two counts of aggravated sexual abuse, on an accessorial liability theory, for allegedly inserting a foreign object into the victim's vagina and rectum. The evidence before the Grand Jury was that the alleged foreign object was the fist of one of the defendants. A "foreign object" is defined as "any instrument or article which, when inserted in the vagina, urethra, penis or rectum, is capable of causing physical injury" (Penal Law § 130.00[9] ). The statute as written is intended to prohibit the use of detached, inanimate objects and, therefore, a fist is not a "foreign object" as contemplated by the statute (People v. Peet, 101 A.D.2d 656, 475 N.Y.S.2d 898, affd. for reasons stated 64 N.Y.2d 914, 488 N.Y.S.2d 379, 477 N.E.2d 620; People v. Cicciari, 107 Misc.2d 733, 435 N.Y.S.2d 940; Sponsor's Memorandum, N.Y.Legis.Ann. 1978, p. 399; Hechtman, Practice Commentaries [1987 Supplement], McKinney's Cons. Laws of N.Y., Book 39, Penal Law § 130.70, at 564).

The court erred by reducing the two counts of aggravated sexual abuse to sexual abuse in the first degree. If the evidence is not legally sufficient to support the crime charged, but is sufficient to support any lesser included offense, the court may not dismiss the count (CPL 210.20[1][b]; People v. Lancaster, 114 A.D.2d 92, 95, 497 N.Y.S.2d 966, affd. 69 N.Y.2d 20, 511 N.Y.S.2d 559, 503 N.E.2d 990, cert. denied, 480 U.S. 922, 107 S.Ct. 1383, 94 L.Ed.2d 697; People v. Maier, 72 A.D.2d 754, 421 N.Y.S.2d 272; Bellacosa, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL 200.70, at 523). However, sexual abuse in the first degree, which contains an intent element, is not a proper lesser included offense of aggravated sexual abuse, to which determination of intent is not relevant (see, People v. Green, 56 N.Y.2d 427, 452 N.Y.S.2d 389, 437 N.E.2d 1146, rearg. denied 57 N.Y.2d 775, 454 N.Y.S.2d 1033, 440 N.E.2d 1343; cf., ...