Court: Appellate Division of the Supreme Court of the State of New York; January 31, 1996; New York; State Appellate Court
The case involves an appeal by the defendant, convicted of two counts of sexual abuse in the first degree and one count of endangering the welfare of a child, based on incidents occurring in April 1993 with his six-year-old daughter. The County Court sentenced him to concurrent prison terms of 2.5 to 7 years for the sexual abuse convictions and a one-year jail term for endangering the welfare of a child.
The court determined that the defendant did not preserve his arguments regarding the indictment's alleged duplicity or multiplicity due to a lack of a timely pretrial motion. The indictment was read to charge each count as a separate crime, thus dismissing the duplicity claim. Even if the multiplicity claim had merit, dismissing the second count would not impact the concurrent sentences.
Regarding the sufficiency of evidence, the court found that the child's unsworn testimony was adequately corroborated by the defendant's written statement, which acknowledged that the child had contact with his genitals, satisfying the legal requirement for corroboration. The child’s testimony, describing how the defendant directed her actions, combined with his confession, provided sufficient evidence for a rational jury to conclude beyond a reasonable doubt that he committed sexual abuse in the first degree. The appeal was ultimately rejected, affirming the conviction.
The child's testimony, along with the defendant's admissions of exposing her to pornography and his own masturbation, provides sufficient evidence for the charge of endangering the welfare of a child, as outlined in the third count of the indictment (Penal Law § 260.10 [1]; People v. Dunavin, 173 AD2d 1032, lv denied 78 NY2d 965). The court rejects the defendant's argument that the term "require" in the first and second counts necessitated proof of force or coercion for the crime of sexual abuse in the first degree. It clarifies that under the applicable statute (Penal Law § 130.65 [3]), forcible compulsion is not a requisite element for the charged offense, and the term "require" was merely a clarifying phrase indicating that the defendant was the actor in the sexual contact, which involved the victim touching the defendant. The definition of sexual contact encompasses any touching of intimate parts for sexual gratification, including interactions where the victim touches the actor or vice versa (Penal Law § 130.00 [3]). The judgment is affirmed with concurrence from Justices Mercure, White, Peters, and Spain.
