People v. Wheeler

• Decision Date: 03 July 1985
• Parties: The PEOPLE of the State of New York, Respondent, v. Matthew G. WHEELER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 206

491 N.Y.S.2d 206

109 A.D.2d 169

The PEOPLE of the State of New York, Respondent, v. Matthew G. WHEELER, Appellant.

Supreme Court, Appellate Division,

Third Department.

July 3, 1985.

Thomas J. Fox, Public Defender, Binghamton (Thomas A. Saitta, Binghamton, of counsel), for appellant.

Patrick H. Mathews, Dist. Atty., Binghamton (Marjorie M. Lyons, Binghamton, of counsel), for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.

LEVINE, Justice.

On the afternoon of April 1, 1983, Eleanor Kelly left her job at Wilson Memorial Hospital in the City of Binghamton and took the elevator to the third floor of the parking garage. Defendant was on the elevator with Kelly and followed her from the elevator to her car. Kelly had just sat down in the driver's seat when she saw defendant standing between her and the car door. Defendant held a knife to her side and, ordering her to slide across the seat, pushed her farther into the car. Defendant got in after Kelly and demanded the car keys from her. Then, kneeling in front of Kelly on the seat, defendant began to pull his sweatshirt over his head. Kelly threw open the door on the passenger side and, crying out for help, fled from the car. Defendant gave chase. When Kelly fell down, defendant knelt astride her and began striking her about the face. The parking attendant heard and responded to Kelly's outcries and confronted defendant as he was dragging her back towards her car. Defendant thereupon fled from the parking garage. He was later arrested and gave a statement to police, which was reduced to writing, in which he admitted that he became sexually aroused by Kelly and intended to have intercourse with her. Defendant was indicted and tried on charges of attempted rape in the first degree, assault in the second degree, robbery in the first degree and coercion in the first degree. Following the trial, defendant was convicted of all but the robbery count of the indictment and was sentenced to concurrent prison terms. This appeal ensued.

Defendant's sole ground for reversal is the trial court's denial of his request to have attempted sexual abuse in the first degree charged as a lesser grade offense of attempted rape in the first degree. The CPL requires the submission of a charge as a lesser included offense upon request by either party when (1) it is impossible to commit the greater offense without concomitantly by the same conduct committing the lesser offense, and (2) where there is a reasonable view of the evidence which would support the finding that the defendant committed the lesser offense but not the greater (CPL 1.20[37]; 300.50[1], [2] ). The Court of Appeals has clarified the application of this rule by stating that the first prong of the test in the CPL refers to theoretical impossibility, as "determined by a comparative examination of the statutes defining the two crimes, in the abstract", and that the second prong "calls for an assessment of the evidence of the particular criminal transaction in the individual case" (People v. Glover, 57 N.Y.2d 61, 64, 453 N.Y.S.2d 660, 439 N.E.2d 376).

A comparative examination of the two relevant statutes in the abstract leads to the conclusion that attempted sexual abuse in the first degree (Penal Law § 130.65) is not a lesser included offense of attempted rape in the first degree (Penal Law § 130.35). The definition of sexual abuse in the first degree applicable here is that of subjecting a person to "sexual contact" by forcible compulsion. The phrase "sexual contact", by definition, requires establishment that the touching be "for the purpose of gratifying sexual desire of either party" (Penal Law § 130.00[3] ). The element of sexual gratification as motivation differentiates sexual abuse in the first degree from other less serious nonsexual contact offenses, such as harassment (Penal Law § 240.25 [a violation] ) or assault in the third degree (Penal Law § 120.00 [a class A misdemeanor] ), a differentiation made necessary by the greater opprobrium attached to sexual offenses. The gravamen of rape in the first degree, on the other hand, is forcible intrusion by the actor into the sexual organ of the female; the motivation for the intrusion is irrelevant. Furthermore, other motivations for rape besides sexual gratification have been recognized, including a desire to humiliate the victim, a desire to injure the victim, and the desire to exercise power and control over the victim (see, e.g., S. Brownmiller, Against Our Will 198-199, 206, 209, 282, 377-378 [1975] ).

Therefore, it is possible in the abstract to commit rape in the first degree without having the motivation necessary to commit, concomitantly by the same conduct, sexual abuse in the first degree. And this obviously holds true with respect to an attempt to commit either crime. The case of People v. Acevedo, 40 N.Y.2d 701, 706, 389 N.Y.S.2d 811, 358 N.E.2d 495 dictates the same result, wherein it was held that when the lesser crime requires proof of an element not required by the greater, it is not a lesser included offense. All of the foregoing is consistent with our reasoning in People v. DuPont, 60 A.D.2d 689, 400 N.Y.S.2d 389. Those cases cited by defendant as holding sexual abuse in the first degree to be a lesser included offense of rape in the first degree (e.g., People v. Rodriguez, 74 A.D.2d 548, 425 N.Y.S.2d 112 [1st Dept]; People v. Dabney, 73 A.D.2d 657, 422 N.Y.S.2d 116 [2nd Dept] revd. on other grounds 52 N.Y.2d 974, 438 N.Y.S.2d 283, 420 N.E.2d 81; People v. Greenhagen, 78 A.D.2d 964, 433 N.Y.S.2d 683...