People v. Webb

• Decision Date: 22 April 1976
• Parties: The PEOPLE of the State of New York, Respondent, v. Kenneth M. WEBB, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 369

382 N.Y.S.2d 369

52 A.D.2d 8

The PEOPLE of the State of New York, Respondent, v. Kenneth M. WEBB, Appellant.

Supreme Court, Appellate Division, Third Department.

April 22, 1976.

David B. Alford, Middleburgh, for appellant.

Sol Greenberg, Dist. Atty., Albany, for respondent.

Before KOREMAN, P.J., and KANE, MAHONEY, MAIN and HERLIHY, JJ.

OPINION FOR AFFIRMANCE

PER CURIAM.

Defendant, on November 4, 1975, at his home in Selkirk, New York, during a period of depression accompanied by excessive drinking of alcoholic beverages, did forcibly compel his 13-year-old stepdaughter to commit oral sodomy.

Defendant raises two issues on this appeal: (1) Family Court had exclusive original jurisdiction over the offense charged and, therefore, County Court lacked jurisdiction to entertain the plea and to impose a sentence, and (2) if County Court did have jurisdiction to act, the sentence imposed was unduly harsh and excessive.

Section 13 of Article 6 of the New York Constitution provides that the Family Court, among other things, has jurisdiction as provided by law. Implementing this constitutional provision, section 812 of the Family Court Act provides that '(t)he family court has exclusive original jurisdiction, subject to the provisions of section eight hundred thirteen, over any proceeding concerning acts which would constitute disorderly conduct, harassment, menacing, reckless endangerment, an assault or an attempt (sic) assault between spouses or between parent and child or between members of the same family or household'. Section 813 of the Family Court Act merely provides the mechanics of transferring to Family Court complaints charging any of the crimes enumerated in the preceding section. The language of section 812 of the Family Court Act is mandatory and any offense set forth therein must initially be handled in Family Court. Conversely, jurisdiction over unenumerated offenses does not lie in that court (People v. Johnson, 20 N.Y.2d 220, 282 N.Y.S.2d 481, 229 N.E.2d 180). The issue then is whether an act of forcible sodomy between parent and child is an 'assault' within the meaning and intent of section 812 of the Family Court Act requiring original jurisdiction in Family Court.

In People v. Nuernberger, 25 N.Y.2d 179, 303 N.Y.S.2d 74, 250 N.E.2d 352, the Court of Appeals held, Inter alia, that Family Court had exclusive jurisdiction over the felony of assault with intent to commit incest, but avoided the issue of whether incest itself was an act within the exclusive jurisdiction of Family Court. Later, in People v. Lewis, 29 N.Y.2d 923, 329 N.Y.S.2d 100, 279 N.E.2d 856, the same court, facing the sole issue of whether incest was an assault within the meaning of section 812 of the Family Court Act, determined it was not. Incest and an act of forcible sodomy between father and daughter are both unnatural acts, heinous in nature, and while both involve 'assaultive' conduct it cannot be said that such acts fall within the meaning of 'assault' as that term is used in section 812 of the Family Court Act. By deliberately refraining from including the crimes of 'incest' and 'sodomy' among the enumerated offenses in section 812, the Legislature implied that such crimes are not 'family offenses' to be...