Court: Appellate Division of the Supreme Court of the State of New York; March 13, 1996; New York; State Appellate Court
Before June 10, 1993, the 71-year-old defendant befriended a legally blind 13-year-old victim. On June 10, the victim’s mother permitted him to accompany the defendant to McDonald’s. During the return trip, the victim fell asleep and awoke to find the defendant's hand on his pants near his genitalia. The victim pushed the defendant's hand away, but the defendant subsequently placed his hand on the victim's thigh and attempted to move it toward his genitalia. The victim again rejected the advance and verbally resisted. Before arriving home, the defendant asked sexually explicit questions and requested secrecy about the incident. Upon returning home, the victim informed his parents, who then reported the matter to the police. A recorded phone conversation revealed the defendant admitting to touching the victim. Following his arrest, the defendant provided a written confession.
During the trial, the defendant's attorney attempted to introduce evidence regarding the defendant's health issues, including an upcoming heart bypass surgery, but the County Court limited this testimony. The court ruled that without prior notice under CPL 250.10, the defendant could not present evidence of his state of mind or diminished capacity. Additionally, the defendant failed to demonstrate a connection between his physical condition and the charges, resulting in the court's decision to exclude the medical testimony as irrelevant.
The defendant also moved for a trial order of dismissal, arguing insufficient evidence of sexual contact and forcible compulsion, which are necessary to establish the crime of sexual abuse in the first degree under Penal Law 130.65 (1). Sexual contact is defined as any touching of intimate parts for sexual gratification. The court found that the defendant's actions—including touching the victim's thigh and genitalia, asking explicit questions, and requesting silence—supported an inference of intent for sexual gratification, thus establishing the required element of sexual contact with legally sufficient evidence.
Evidence demonstrated that the defendant used physical force to compel the victim, as he placed his hand on the victim’s thigh and genitalia against the victim's will. Factors such as the victim’s protests, physical resistance, the defendant’s age, his status as a trusted friend, the victim's physical disability, and the victim's isolation contributed to establishing the element of forcible compulsion necessary for the crime. The victim’s testimony about being asleep when the first contact occurred further illustrated his physical helplessness, a requirement for sexual abuse in the first degree. The County Court's denial of the defendant's motion was upheld, as the jury instructions regarding the relationship between sexual abuse in the first and second degrees did not warrant further discussion. The defendant's request for a sentencing adjournment for updated medical reports was properly denied, given that the court had sufficient information to impose a sentence and was aware of the defendant's medical condition. The claim that the court was bound by an implied sentence recommendation was rejected as it was not recorded. Additionally, consecutive sentences for two separate incidents of sexual abuse were deemed appropriate. The court found the sentence justified, particularly in light of indications of the defendant's pedophilic interests. The judgment was affirmed.
