People v. Vicaretti

• Decision Date: 05 November 1976
• Citation: 54 A.D.2d 236,388 N.Y.S.2d 410
• Parties: PEOPLE of the State of New York, Respondent, v. Frank A. VICARETTI, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 410

388 N.Y.S.2d 410

54 A.D.2d 236

PEOPLE of the State of New York, Respondent, v. Frank A. VICARETTI, Jr., Appellant.

Supreme Court, Appellate Division, Fourth Department.

Nov. 5, 1976.

Peter L. Yellin, Rochester (Andrew Fine, Rochester, of counsel), for appellant.

Lawrence T. Kurlander, Rochester (Melvin Bressler, Rochester, of counsel), for respondent.

Before MARSH, P.J., and MOULE, CARDAMONE, MAHONEY and DILLON, JJ.

MOULE, Justice.

Defendant appeals from a judgment of conviction entered upon a jury verdict which found him guilty of rape in the first degree. He alleges twelve separate points of error including, inter alia, failure to establish a prima facie case, denial of requested instructions to the jury, and the admission of certain hearsay testimony.

The facts, as testified by complainant, are as follows: On April 23, 1974 complainant and a close friend, Victoria O'Mara, had spent the evening at the Fountainbleu Restaurant in Rochester, New York celebrating complainant's birthday. When the bar closed at 2:30 A.M., O'Mara went out to breakfast with a friend who had been tending bar. Complainant chose not to accompany them and instead drove home to her apartment. Along the way she observed defendant following her.

Upon her arrival at the apartment, defendant pulled up in his car and introduced himself. After making reference to an alleged mutual friend defendant asked if he could come up to her apartment for a cup of coffee. Although hesitant at first, complaint finally consented.

Once inside the apartment they talked briefly about the fact that complainant had been laid off from work. A short time later, while seated on the living room couch, defendant told complainant that he had a gun and that he wanted to have intercourse with her. While complainant kicked and squirmed, defendant lifted her off the couch and carried her toward the bedroom. Thinking that she could perhaps lock herself in the bathroom, she asked to be let down to use the toilet. Defendant, however, held the bathroom door so that she could neither close nor lock it. She then attempted to run out the front door of the apartment, but defendant caught up to her and blocked the way. He then once again picked her up and took her into the bedroom. After partially undressing complainant and himself, he had sexual intercourse with her. As he got ready to leave, he told her that if she ever contacted the police he would say she 'lured' him up to her apartment and he would also make sure she never got her job back.

Immediately after defendant left, complainant telephoned Victoria O'Mara and told her that she had been raped. While on her way to complainant's apartment, O'Mara waved down two policemen who subsequently accompanied her. They testified that when they arrived at the apartment complainant was hysterical and crying. Although at first hesitant to talk to the police on account of defendant's threats, she eventually told them the complete story and defendant was subsequently arrested and charged with rape in the first degree.

Defendant's first contention on this appeal concerns his prosecution under Penal Law, § 130.35 (subd. 1), rape in the first degree by forcible compulsion, and charges that the decision to prosecute him for this crime rather than for sexual misconduct under Penal Law, § 130.20, denied him equal protection of the law.

Pursuant to Penal Law, § 130.20, a person is guilty of sexual misconduct, a class A misdemeanor, when '1. Being a male, he engages in sexual intercourse with a female without her consent.' Section 130.05 (subd. 2) provides that such lack of consent results from the use of '(f)orcible compulsion'. Thus defendant contends that, both as a general proposition and under the facts of this case, the two statutes contain the exact same elements, viz., sexual intercourse by forcible compulsion. Since they prescribe different degrees of punishment (B felony v. A misdemeanor), they grant unlimited discretion to the prosecution as to which offense will be charged in a given case. This, according to defendant, results in a denial of equal protection (see, e.g., State of Oregon v. Pirkey, 203 Or. 697, 281 P.2d 698; United States v. Meyers, D.C., 143 F.Supp. 1, 16 Alaska 368). While it may be true that under certain circumstances the crimes of rape in the first degree and sexual misconduct may be identical, that fact alone does not, however, under the prior case law of this State, amount to a denial of equal protection.

In People v. Eboli, 34 N.Y.2d 281, 287, 357 N.Y.S.2d 435, 439, 313 N.E.2d 746, 749 wherein a similar argument regarding coercion in the first and second degrees was dismissed, the Court of Appeals stated that it has

'consistently held that overlapping in criminal statutes, and the opportunity for prosecutorial choice they represent, is no bar to prosecution. * * * In People v. Lubow, 29 N.Y.2d 58, 67, 323 N.Y.S.2d 829, 834, 272 N.E.2d 331, 335, it was recognized that the statutory definition of solicitation as a misdemeanor (Penal Law, § 100.05), embraced the elements of the lesser degree, solicitation as a 'violation' (Penal Law, § 100.00), and consequently, whenever the higher degree of solicitation was committed, so was the lower. Despite this inherent duplication, and the concomitant opportunity for choice by the District Attorney, prosecution for the higher crime was held permissible (citations omitted).'

See also, Mauney v. United States, 6 Cir., 454 F.2d 273; United States v. Hancock, 5 Cir., 441 F.2d 1285, cert. den. 404 U.S. 833, 92 S.Ct. 81, 30 L.Ed.2d 63; Black v. United States, 5 Cir., 405 F.2d 187, cert. den. 394 U.S. 990, 89 S.Ct. 1477, 22 L.Ed.2d 765; United States v. Eisenmann, 2 Cir., 396 F.2d 565; Hutcherson v. United States, 120 U.S.App.D.C. 274, 345 F.2d 964, cert. den. 382 U.S. 894, 86 S.Ct. 188, 15 L.Ed.2d 151.

The Court of Appeals also noted that while the existence of such prosecutorial discretion does not, on its face, violate either due process or equal protection, 'unlawful discrimination in the exercise of a prosecutor's power to charge would violate the equal protection guarantee of the Constitution.' (People v. Eboli, 34 N.Y.2d 281 Supra, at 290, 357 N.Y.S.2d 435, at 441, 313 N.E.2d 746, at 751.)

Although defendant alternatively raises this abuse of discretion, he offers no proof that in prior cases involving similar factual situations, the prosecutor declined to charge defendants with rape in the first degree. Furthermore, in our opinion, the facts of this case clearly justify the prosecutor's choice of the more serious offense.

Defendant's second contention is that, assuming the validity of the charge of rape in the first degree, the prosecution failed to establish a prima facie case since it did not present sufficient evidence on the necessary element of forcible compulsion.

Penal Law, § 130.00 (subd. 8), defines 'forcible compulsion' as '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.' According to defendant's argument the prosecution had failed to establish either the necessary earnest resistance or the complainant's belief of an implied threat. We disagree, however. While the prosecution apparently relied primarily upon defendant's implied threat of serious physical injury, there was sufficient evidence presented under both definitions of forcible compulsion to warrant submission of the case to the jury and to justify the subsequent conviction.

With respect to the issue of 'earnest resistance' defendant correctly asserts that 'where the charge is rape in the first degree, rape is not committed unless the woman opposes the man to the utmost limit of her power (and that the) resistance must be genuine and active (People v. Carey, 223 N.Y. 519, 119 N.E. 83; People v. Warren, 24 A.D.2d 664, 261 N.Y.S.2d 217).' (People v. Hughes, 41 A.D.2d 333, 336, 343 N.Y.S.2d 240, 242.) However, it is equally true that the question of whether the resistance was sufficient, genuine and active is one of fact for the jury's consideration.

In the instant case the jury had for its consideration the relative size of defendant and complainant along with complainant's undisputed testimony that she struggled, tried to kick defendant, and tried to lock herself in the bathroom. Furthermore, it could consider her attempt to escape and her prompt assertion, albeit only to friends, that she had been raped. Although admittedly she did not scream, there was testimony that the adjoining apartment was unoccupied and that loud music was coming from the downstairs apartment of Patricia Barone. Thus the jury could consider whether under these circumstances the fact that complainant did not scream constituted a failure to resist earnestly.

Defendant's reliance upon People v. Hughes, 41 A.D.2d 333, 343 N.Y.S.2d 240, Supra, is misplaced. In Hughes the complainant and two male companions spent the night in defendant's room at a YMCA. After complainant had had intercourse with one of her companions, defendant arrived and after threatening her with an 'instrument' (described at different times as a razor, knife and a box opener) he allegedly proceeded to rape her in the presence of her companions. In reversing the conviction, the Third Department stated that

'(i)t is difficult to conclude that the complainant here waged a valiant struggle to uphold her honor. By her own testimony, the sum total of her resistive efforts was to call to one of her companions once for help and to push the defendant away and ask him to stop and to make one attempt to leave the bed.' 41 A.D.2d 333 at 336, 343 N.Y.S.2d 240 at 242.

However, it is important to note that aside from complainant's failure to resist, the court also based its decision on the lack of a 'meaningful attempt to escape or to seek assistance, the incredible behavior of her male companions, and...