People v. Velazquez
| Decision Date | 21 August 1980 |
| Citation | 431 N.Y.S.2d 37,77 A.D.2d 845 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Isidro VELAZQUEZ, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
H. Birnbach, New York City, for respondent.
B. G. Rhodes, Brooklyn, for defendant-appellant.
Before FEIN, J. P., and ROSS, SILVERMAN and CARRO, JJ.
Judgment, Supreme Court, Bronx County, rendered on July 25, 1979, convicting defendant, after trial by jury, of rape in the first degree and criminal possession of a weapon in the fourth degree, and sentencing him thereupon concurrently to an indeterminate term of from two to six years and a definite term of one year, respectively, unanimously reversed, on the law, and the matter remanded for a new trial.
At 7:30 in the morning of October 26, 1978, the eleven-year-old victim was walking to school with her younger brother, when a man, later identified as the defendant, approached and enlisted her aid in looking for his son in nearby Claremont Park. She was promised two dollars and proceeded into the park, leaving her brother behind.
Shortly thereafter, she realized something was amiss and attempted to flee. Defendant grabbed her by the wrist and dragged her further into the park where he withdrew a knife and forced the young victim to disrobe. The victim testified that she was raped. At trial the presence of semen was noted in the victim's undergarments; however, no semen was found in vaginal smears; the vaginal area was free of bruises, lacerations, scratch marks or redness and the hymen was intact. A physician called by the People testified that penetration was possible even though the vaginal area was free of trauma.
The victim provided the police with a complete description of the rapist. Approximately one month after this incident, the victim, while riding with the police in a patrol car, spotted the defendant and immediately identified him. Defendant was called over to the car and upon seeing the victim quickly walked away. The officers exited the car and when they caught up to defendant he allegedly stated,
Defendant presented a plausible alibi defense. Defendant and his wife testified that at the time of this incident, he was in bed with a bad back. Numerous friends and family members attested to this fact as well as defendant's good character.
Thus a critical issue at trial was the presence of the defendant at the scene of this crime. In its charge to the jury on alibi, the Court stated:
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