People v. Dafoe

Appellate Division of the Supreme Court of New York

People v. Dafoe

31 A.D.2d 893, 295 N.Y.S.2d 770, 1968 N.Y. App. Div. LEXIS 2549

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 30, 1968

StatusPublished

This text of 31 A.D.2d 893 (People v. Dafoe) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Dafoe, 31 A.D.2d 893, 295 N.Y.S.2d 770, 1968 N.Y. App. Div. LEXIS 2549 (N.Y. Ct. App. 1968).

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Opinion

Memorandum by the Court. Appeal from a judgment of the County 'Court of 'St. Lawrence County rendered March 21, 1967 upon a verdict convicting the defendant of the crimes of assault in .the second degree and attempted rape in .the first degree. Complainant testified that appellant forced her to accompany him to a darkened area in a park, where he removed portions of her clothing and fondled her. There was no evidence of a completed rape, and the jury found defendant not guilty of an additional charge of sodomy. We find insufficient evidence in this record of the requisite intent to commit a felony to sustain the conviction for assault in the second degree or attempted rape in the first degree. Inasmuch as the proof would sustain a finding of guilt of assault, third degree, we modify the judgment accordingly (Code Crim. Pro., § 543, snbd. [2]). Judgment modified, on the law and the facts, by striking out the provisions convicting appellant of assault, second degree, and attempted rape, first degree, and imposing sentence therefor; and by substituting therefor a provision convicting appellant of the misdemeanor [894]*894of assault, third degree, and sentencing him to a term of four months in the county jail, with credit for time served. As so modified, the judgment is affirmed. Gibson, P. J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.

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Memorandum by the Court. Appeal from a judgment of the County 'Court of 'St. Lawrence County rendered March 21, 1967 upon a verdict convicting the defendant of the crimes of assault in .the second degree and attempted rape in .the first degree. Complainant testified that appellant forced her to accompany him to a darkened area in a park, where he removed portions of her clothing and fondled her. There was no evidence of a completed rape, and the jury found defendant not guilty of an additional charge of sodomy. We find insufficient evidence in this record of the requisite intent to commit a felony to sustain the conviction for assault in the second degree or attempted rape in the first degree. Inasmuch as the proof would sustain a finding of guilt of assault, third degree, we modify the judgment accordingly (Code Crim. Pro., § 543, snbd. [2]). Judgment modified, on the law and the facts, by striking out the provisions convicting appellant of assault, second degree, and attempted rape, first degree, and imposing sentence therefor; and by substituting therefor a provision convicting appellant of the misdemeanor [894]*894of assault, third degree, and sentencing him to a term of four months in the county jail, with credit for time served. As so modified, the judgment is affirmed. Gibson, P. J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.

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Bluebook (online)

31 A.D.2d 893, 295 N.Y.S.2d 770, 1968 N.Y. App. Div. LEXIS 2549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dafoe-nyappdiv-1968.