People v. Watson

• Decision Date: 18 April 1977
• Citation: 57 A.D.2d 143,393 N.Y.S.2d 735
• Parties: The PEOPLE, etc., Respondent, v. James WATSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 735

393 N.Y.S.2d 735

57 A.D.2d 143

The PEOPLE, etc., Respondent, v. James WATSON, Appellant.

Supreme Court, Appellate Division, Second Department.

April 18, 1977.

Abraham Werfel, Jamaica, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Michael R. Berlowitz, Kew Gardens, of counsel), for respondent.

Before HOPKINS, Acting P.J., and MARTUSCELLO, COHALAN and DAMIANI, JJ.

HOPKINS, Acting Presiding Justice.

On November 14, 1973 the complainant, then aged 17, accompanied the defendant to an American Legion Hall to acquire two free dance tickets in exchange for her assistance in selling other tickets for the defendant. There, the defendant restrained the complainant in a locked room and compelled her, by threatening her with a knife, to engage in sexual intercourse with him.

The complainant, upon leaving the American Legion Hall, told her boyfriend that she had been raped. Later the same day, she submitted to interrogation by the police and a medical examination by a physician. The doctor's diagnosis disclosed the presence of semen and a minor bruise on the complainant's back, which the complainant attributed to the rape. Several witnesses who testified at the trial described the complainant as upset, embarrassed, and redeyed from crying subsequent to the incident.

CONTENTIONS

The defendant raises the following arguments: (1) an erroneous charge pertaining to corroboration of the element of identity with regard to the crime of rape in the first degree became the law of the case and, consequently, such corroboration, though lacking, was necessary to convict him; (2) there was insufficient corroboration of the essential element of lack of consent with regard to the crime of rape in the first degree; (3) there was insufficient corroboration of the elements of the crimes of possession of weapons and unlawful imprisonment in the first degree; (4) the conviction of the crime of unlawful imprisonment was improper, because the proof of the elements of confinement and substantial risk of serious injury was not independent of the alleged rape; (5) the court improperly ruled to permit the prosecution's use, on cross-examination, of a prior conviction of attempted rape in the first degree; (6) there were several instances of evidence improperly admitted by the trial court which deprived him of a fair trial; and (7) he was improperly sentenced as a second felony offender.

We affirm. The doctrine of the law of the case does not apply under the circumstances here. The only corroboration required under the statute in the form then existing related to the elements of lack of consent and the attempt to engage in sexual intercourse (see Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 130.16), both of which were established by the proof at the trial. We find, in addition, that the defendant was accorded a fair trial and was duly sentenced.

I LAW OF THE CASE

The Trial Judge charged the jury, without exception taken by either the prosecution or the defendant, that all of the elements of the crime of rape in the first degree, including the identity of the defendant, must be corroborated, in order to convict. This was clearly an erroneous charge. The controlling statute at the time of the commission of the crime (Penal Law, former § 130.15) required corroboration only as to the elements of the attempt to engage the victim in sexual intercourse and lack of consent. No corroboration of the identity of the defendant was then required for a charge of forcible rape.

Nevertheless, the defendant contends on this appeal for the first time that the unexcepted-to charge, although erroneous, became the law of the case. Consequently, he urges that the jury was bound to follow those instructions and that, since there was insufficient evidence in the record to corroborate the identity of the defendant as the perpetrator, his conviction must be reversed.

The law of the case has been said to be applicable to a criminal proceeding (see People v. Lobel, 298 N.Y. 243, 254, 82 N.E.2d 145, 150, mot. for rearg. den., 298 N.Y. 920, 85 N.E.2d 62; People v. Doyle, 304 N.Y. 120, 121--122, 106 N.E.2d 42, 43; People v. Adams, 33 A.D.2d 882, 307 N.Y.S.2d 475).

However, such cases are distinguishable from the present appeal. In Adams the Fourth Department unanimously reversed a conviction of second degree burglary for entering a dwelling at night with the intent to commit the crime of rape. The trial court had erroneously charged the jury, without exception, that the complainant's testimony as to the elements of the crime of burglary in the second degree must be corroborated. The appellate court held that this charge became the law of the case. However, that court's reversal was based upon the finding that there was insufficient evidence to corroborate the defendant's intent to commit the crime of rape. Corroborati of this element of the crime had properly been charged by the trial court.

Similarly, in Doyle, the unexcepted-to charge, which became the law of the case, was not the basis of the court's reversal of the conviction. In Lobel the court merely noted that where an unchallenged instruction to the jury becomes the law of the case, it must be assumed that the jury gave full heed to it in reaching its verdict.

The doctrine of the law of the case is a rule of practice reflecting an articulation of sound policy that, when an issue is once judicially determined, that determination should end the matter when the issue is later confronted by the judges and courts of co-ordinate jurisdiction (see, e.g., United States v. United States Smelting Refining & Min. Co., 339 U.S. 186, 198, 70 S.Ct. 537, 94 L.Ed. 750; Telaro v. Telaro, 25 N.Y.2d 433, 437--438, 306 N.Y.S.2d 920, 922--23, 255 N.E.2d 158, 159). However, the doctrine has no binding force on appeal, since the appellate court is not a co-ordinate, but a higher tribunal (Rager v. McCloskey, 305 N.Y. 75, 78, 111 N.E.2d 214, 216).

Moreover, there is a distinction between the law of the case and a situation arising from the acquiescence of the parties (cf. Martin v. City of Cohoes, 37 N.Y.2d 162, 166, 371 N.Y.S.2d 687, 690, 332 N.E.2d 867, 869). As was said in Martin (p. 165, 371 N.Y.S.2d p. 690, 332 N.E.2d p. 869):

'It, therefore, has at times been a source of confusion when 'law of the case' terminology has been used in discussing nonreviewability of a point because an aggrieved party has failed to except to an adverse determination below * * * Indeed, even when no objection has been taken, our Appellate Divisions may correct errors in the exercise of their power to act 'in the interests of justice' * * * and the 'law of the case' could hardly have less to do with it.

'However, as here happened, parties to a civil litigation, in the absence of a strong countervailing public policy, may consent, formally or by their conduct, to the law to be applied'.

The defendant's trial counsel did not at any time move to dismiss the indictment on the ground that the People had failed to corroborate the identity of the defendant as the perpetrator of the crime. Indeed, toward the conclusion of his summation, the defense attorney said:

'(T)he question here is not the intercourse: it's not the identification. The question is whether there was force used here, as defined by law whether a knife was here. That's the force they are alleging here, the knife.'

Although the court sustained the prosecutor's objection to that part of the summation, the statement is indicative of the defendant's acquiescence that the issue of identity was not in contest.

The colloquy among counsel to the parties and the court which preceded the judge's charge to the jury, contains additional references to the defendant's acquiescence:

'THE COURT: Do you have any other requests to charge other than what you mentioned?

'MR. PROSCIA: (Defense Counsel) No, just those two things, Judge, the corroboration and I do want you to charge also with regard to his not taking the stand, that they are not to draw any inference.

'MR. ALIAZZO: (Prosecutor) No.

'THE COURT: You said identification is not an issue; you say it is. You practically concede that he was the one who had the relations, except that it wasn't compulsion, that it wasn't by force?

'MR. PROSCIA: As a factual matter during the case; I'm saying as a matter of the trial, it's not.

'THE COURT: All right.

'THE COURT: Now, if the issue was one of identification, the defendant is a person who committed the alleged crime then, of course, if they find he's not the person who committed the crime, there's no case--if he's not the person involved at all.

'But he conceded the fact that he's the person.

'THE COURT: If I were going to say something about identification, I would usually do it in connection with a case where there is clearly an issue of whether or not this defendant committed the crime.

'MR. ALIAZZO: I consent, if he does, to your not mentioning identification at all tomorrow.

'MR. PROSCIA: Fine, no problem.'

Hence, by his conduct at the trial, the defendant in effect agreed that identity was not a subject of controversy in the trial. "A controversy put out of the case by the parties is not to be put into it by us" (People v. Morhouse, 21 N.Y.2d 66, 75, 286 N.Y.S.2d 657, 664, 233 N.E.2d 705, 710; see, also, People v. Robinson, 284 N.Y. 75, 81, 29 N.E.2d 475, 478; cf. People ex rel. Tanner v. Vincent, 44 A.D.2d 170, 171--172, 354 N.Y.S.2d 145, 146, affd., 36 N.Y.2d 773, 368 N.Y.S.2d 842, 329 N.E.2d 672). The defendant cannot now reverse his position and claim on appeal insufficient corroboration as to the issue conceded at trial. 'The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played' (Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446; Brennan, The Criminal Prosecution: Sporting Event or Quest...