People v. Dietz

Appellate Division of the Supreme Court of New York

People v. Dietz

114 A.D.2d 1038, 495 N.Y.S.2d 477, 1985 N.Y. App. Div. LEXIS 54084

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

DecidedNovember 25, 1985

StatusPublished

Cited by1 cases

This text of 114 A.D.2d 1038 (People v. Dietz) 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. Dietz, 114 A.D.2d 1038, 495 N.Y.S.2d 477, 1985 N.Y. App. Div. LEXIS 54084 (N.Y. Ct. App. 1985).

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Opinion

— Appeal by defendant from a judgment of the County Court, Nassau County (Harrington, J.), rendered February 7, 1984, convicting him of attempted rape in the first degree and sexual abuse in the first degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

Notwithstanding the complainant’s testimony of a completed rape, there was a reasonable view of the evidence which would support a finding that defendant only committed the lesser included offense of attempted rape and, therefore, that charge was properly submitted to the jury upon request of the People (CPL 300.50 [1]; People v Glover, 57 NY2d 61). Given the relatively small area of the front passenger seat of defendant’s car where the attack occurred, rendering actual penetration difficult, if not improbable, coupled with the medical testimony as to absence of seminal fluid and trauma in or about the complainant’s vagina, the jury could have reasonably discounted her testimony as to the actual penetration and still have credited her testimony regarding the forcible attempt, which was adequately supported by the evidence (cf. People v Kinnard, 98 AD2d 845, affd 62 NY2d 910).

We have examined defendant’s remaining contentions and find them to be without merit. Mollen, P. J., Thompson, Bracken and O’Connor, JJ., concur.

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— Appeal by defendant from a judgment of the County Court, Nassau County (Harrington, J.), rendered February 7, 1984, convicting him of attempted rape in the first degree and sexual abuse in the first degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

Notwithstanding the complainant’s testimony of a completed rape, there was a reasonable view of the evidence which would support a finding that defendant only committed the lesser included offense of attempted rape and, therefore, that charge was properly submitted to the jury upon request of the People (CPL 300.50 [1]; People v Glover, 57 NY2d 61). Given the relatively small area of the front passenger seat of defendant’s car where the attack occurred, rendering actual penetration difficult, if not improbable, coupled with the medical testimony as to absence of seminal fluid and trauma in or about the complainant’s vagina, the jury could have reasonably discounted her testimony as to the actual penetration and still have credited her testimony regarding the forcible attempt, which was adequately supported by the evidence (cf. People v Kinnard, 98 AD2d 845, affd 62 NY2d 910).

We have examined defendant’s remaining contentions and find them to be without merit. Mollen, P. J., Thompson, Bracken and O’Connor, JJ., concur.

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Bluebook (online)

114 A.D.2d 1038, 495 N.Y.S.2d 477, 1985 N.Y. App. Div. LEXIS 54084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dietz-nyappdiv-1985.

Opinion

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