People v. Johnson

46 A.D.2d 55, 361 N.Y.S.2d 161, 1974 N.Y. App. Div. LEXIS 3594

Opinions

Lane, J.

The complaining witness, while on her way to a party, was walking westbound on 21st Street in Manhattan. She passed the defendant, who was standing on the sidewalk, and then heard footsteps following closely behind her. She turned and saw the defendant. He pulled out a knife, placed it at her throat and, while rubbing it along her throat, repeated that he wanted to have sexual intercourse with her. She pleaded with the defendant not to harm her but did not scream for fear of the knife being held against her throat. Defendant then dragged her across the street to an abandoned building and forced her to the bottom of a stairwell littered with debris. Defendant, while still holding the knife, told the complainant to take off her clothes during which time the defendant repeatedly verbalized his need for sexual release. Prior to intercourse, the defendant placed a cigarette lighter to the vagina of the complainant and she, feeling the heat, pushed it away. He then pulled down his pants and they engaged in sexual intercourse. The defendant, while on top of her, asked if she had any money. She said she had $10 in her purse which he said that he wanted.

At that time, two policemen on radio motor patrol arrived on the scene after receiving an emergency radio call that a robbery was in progress at that location. When they approached the stairwell, they saw the complainant and the defendant engaged in sexual intercourse. The officers then ordered both the complainant and the defendant to come up the stairs onto the sidewalk. When complainant was out of reach of the defendant, she told the officers that she had just been raped.

.The knife and cigarette lighter were recovered from the person of the defendant. Complainant had a cut over her right cheekbone which was noted by the police officer. Examination of the complainant by a doctor confirmed that sexual intercourse had occurred. The doctor also found a laceration on complainant’s chin.

The court, in instructing the jury, did not include a charge pursuant to the law then extant: that the elements of the crime of rape had to be corroborated. No request to charge corroboration was made by counsel nor exception taken. The jury returned a verdict finding the defendant guilty of the crimes of attempt to commit the crime of robbery in the first degree, attempt to commit the crime of grand larceny in the third degree, possession of a weapon, assault in the second degree, rape in the first degree, and sexual abuse in the first degree.

Reversal is urged based on the failure of the court to include instructions that the complainant’s testimony as to the crime of rape and charges related to it (such as assault and sexual abuse in the first degree) must be corroborated by independent evidence touching upon every material element of the crime.

It must first be noted, and our dissenting brother concedes, that, as to the crimes of attempted robbery and attempted grand larceny, no corroboration is required and the conviction of those crimes must be affirmed (People v. Moore, 23 N Y 2d 565; People v. Lennon, 22 N Y 2d 677).

However, contrary to the assertion made in the dissent, there was ample corroboration of the crime of rape.

There is no question but that the police testimony and the testimony of the doctor corroborate the identity of the perpetrator and the fact that penetration occurred.

The complainant’s testimony of the use of force was corroborated by the scratch on her face and the recovery of the knife and the cigarette lighter (cf. People v. Marshall, 5 A D 2d 352, affd. 6 N Y 2d 823; People v. Masse, 5 N Y 2d 217). Her immediate disclosure of the rape to the police was an additional factor to be considered by the jury (People v. Page, 162 N. Y. ; People v. Czyz, 262 App. Div. 1027). The lack of resistance by the complainant was amply explained by her fear of physical injury (cf. People v. Yannucci, 283 N. Y. 546).

Left for resolution, therefore, is only the effect of the failure of the court to instruct the jury on corroboration.

At common law, corroboration of the testimony of the prosecutrix was not required (7 Wigmore, Evidence [3d ed.], § 2061, p. 342), and this rule was a reflection of the thinking that requiring a specified quantity of witnesses would not have much actual influence upon the jurors ’ minds and that the addition of a statutory rule of requiring corroboration tends to produce reliance on a “ rule of thumb ” rather than credible evidence (7 Wigmore, Evidence [3d ed.], § 2061, pp. 354-355).

The statutory rule requiring corroboration in select criminal prosecutions is in any event a procedural rule, and not an additional element of the crime. For example, accomplice testimony requires corroboration pursuant to CPL 60.22 and yet has traditionally been considered a procedural device (People v. Mayhew, 150 N. Y. 346, 353; People v. Blank, 283 N. Y. 526, 528-529). Proving the crime of perjury requires corroborative evidence pursuant to section 210.50 of the Penal Law, and yet failure of such corroboration is not considered a deletion of an “element” of the substantive crime (Matter of Ruggiero, 40 A D 2d 135, 136).

Further proof that corroboration is a procedural device, not changing the elements of the crime, is that conviction may be had on clear evidence, though uncorroborated, if the complaining witness does not testify (People v. Harris, 282 App. Div. 156, 159, affd. 306 N. Y. 345).

In the case at bar, corroborating evidence was presented. The statute does not specifically require a charge on corroboration (see Penal Law, § 130.15), but merely that corroborative evidence be introduced. Failure to instruct the jury in that regard, when no request was made by counsel and where the evidence of guilt is clear, does not mandate reversal (People v. Biglizen, 112 App. Div. 225, affd. 185 N. Y. 616 [cited with approval in concurring opinion per Breitel, J., in People v. Reynolds, 25 N Y 2d 489, 496]).

It is difficult to reconcile the conclusion of the dissent that the evidence was clear enough to prove guilt beyond a reasonable doubt as to the crime of attempted robbery, which includes among its elements a finding of force or the threatened use of force and yet conclude at the same time that there was insufficient corroboration of force with regard to the crime of rape committed at the same time.

Accordingly, the judgment of conviction rendered December 5,1972 should be affirmed.