Court: Appellate Division of the Supreme Court of the State of New York; February 17, 1999; New York; State Appellate Court
Defendant, an assistant boy scout master, was indicted for various sexual and alcohol-related offenses involving three young boys, two of whom were scouts. He was convicted of third degree sodomy, second degree sexual abuse, and five counts of first degree unlawful dealing with a child, resulting in a sentence of 1.5 to 4 years for sodomy and one year for each of the other counts, all to run concurrently. The court recognized that a person is considered physically helpless due to voluntary intoxication, as established in prior case law. Victim C testified that he was very intoxicated and unable to speak during the incident, supporting the jury's consideration of the sodomy charge.
The defendant contested the admission of a pornographic videotape found in his home, claiming it was prejudicial and irrelevant. However, the court found the tape relevant as it established the context of the events leading to the crimes, corroborating the victims’ testimonies about alcohol consumption and viewing the tape during the incident. The defendant also argued that the intoxication of victim C did not meet the legal threshold for being physically helpless under Penal Law 130.50 (2), but the court disagreed.
Additionally, the defendant claimed he was improperly denied the opportunity to present an alibi based on employment records from June 15 to June 21, 1995. The court ruled against this claim, noting that the defendant had not provided a timely notice of alibi and that the records indicated he worked a shift starting June 19, which did not cover the alleged crime dates of June 17 to June 18. Thus, the court found no error in precluding the alibi evidence.
Defendant's argument that his convictions for unlawfully dealing with a child are invalid due to the lack of a commercial setting is rejected. In People v. Martell, the Court of Appeals determined that former Penal Law § 484 (3) did not apply when alcohol was provided to minors in a home, as this provision was linked to commercial activities. However, the current Penal Law § 260.20(2) differs, as it prohibits serving alcohol to minors without any commercial activity requirement. The statute exempts only parents or guardians, and since the defendant did not fall into this category, his actions are clearly prohibited. The court finds the defendant's other arguments unpersuasive, affirms the judgment, and remits the matter to the County Court of Saratoga County for further proceedings. The inclusion of first-degree sodomy in the jury's consideration, despite the defendant's acquittal, influenced his request for instructions on third-degree sodomy, the charge of which he was convicted.
