People v. Thompson

• Decision Date: 30 July 1987
• Citation: 132 A.D.2d 885,518 N.Y.S.2d 449
• Parties: The PEOPLE of the State of New York, Respondent, v. Charles Anthony THOMPSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 449

518 N.Y.S.2d 449

132 A.D.2d 885

The PEOPLE of the State of New York, Respondent, v. Charles Anthony THOMPSON, Appellant.

Supreme Court, Appellate Division Third Department.

July 30, 1987.

Oliver & Oliver (Lewis B. Oliver, of counsel), Albany, for appellant.

Sol Greenberg, Dist. Atty. (Cheryl F. Coleman, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and WEISS, YESAWICH, LEVINE and HARVEY, JJ.

MAHONEY, Presiding Justice.

Appeal from a judgment of the County Court of Albany County (Clyne, J.), rendered February 17, 1982, upon a verdict convicting defendant of two counts of the crime of sodomy in the first degree.

On August 6, 1981, a 16-year-old inmate at the Albany County Jail, assigned to the juvenile tier, was allegedly forced to perform acts of sodomy by defendant, a 35-year-old male who was then also an inmate. Defendant was indicted and charged with two counts of first degree sodomy and two counts of third degree sodomy. A jury trial was conducted, after which County Court submitted to the jury the two counts of first degree sodomy and, alternatively, the two third degree sodomy counts. The jury found defendant guilty of two counts of first degree sodomy, after which defendant was sentenced as a predicate felon to indeterminate terms of imprisonment of 12 1/2 to 25 years, to run consecutive to sentences then being served. Defendant appeals.

Initially, defendant challenges the indictment as jurisdictionally defective on the ground that the counts charging first degree sodomy do not sufficiently allege forcible compulsion, which is an element of that crime (Penal Law § 130.50). This challenge was not raised until this appeal. While jurisdictional defects in an indictment may be raised on appeal despite the absence of an objection at trial, a challenge to the sufficiency of factual allegations in the indictment may not (see, People v. Iannone, 45 N.Y.2d 589, 600-601, 412 N.Y.S.2d 110, 384 N.E.2d 656). The indictment in the instant case alleges forcible compulsion and, thus, is not jurisdictionally defective. Defendant's contention that it does not allege facts demonstrating the immediacy of the threats made to the victim goes to the adequacy of the factual allegations of the indictment, and this contention cannot now be raised.

Next, defendant contends that there was insufficient evidence to establish forcible compulsion which is an element of first degree sodomy. Forcible compulsion means:

* * * physical force that overcomes earnest resistance; or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person, or in fear that he or another person will immediately be kidnapped (emphasis supplied) (Penal Law former § 130.00[8] ). ^*

In the instant case, the alleged incident occurred at a time when the victim was locked in a cell at the jail. Defendant propositioned the victim from outside the cell and threatened the victim that, if he did not comply with defendant's demands, defendant would "put the word out" and make sure that the victim "had a rough time of it". The victim then performed the acts of sodomy through the bars of his cell. Defendant contends that these facts do not present a threat of immediate injury. We agree. While the force of threats made in a prison setting are undeniably very real (see, People v. Bink...