In re David M.
OPINION OF THE COURT
This сase involves a petition brought against a juvenile charged with conduct which (if he were an adult) would constitute sexual abuse in the second degree and unlawful imprisonment in the second degree.
According to the testimony of the complainant, a 13 year old, she first saw respondent on the second floor of her apartment building while she was knocking on a friend’s doоr. The friend was not home, and according to complainant’s testimony, she entered the elevator where she was alone in the elevator with respondent. When she attemptеd to exit on the fourth floor, the respondent grabbed her waist and pulled her back onto the elevator. At this point in time, complainant screamed. The complainant further testified that although she struggled to stay on the elevator, the respondent pulled her off the elevator and into the stairwell at the sixth floor. There, while both were fully clothed, respondent pushed complainant to the floor putting her body face up on top of his body, which was now lying in a prone position, and commenced thrusting his penis into her buttocks. According to cоmplainant, she bit respondent’s hand in the struggle but because of fright was unable to scream.
The respondent finally stopped.
After the incident was terminated, complainant testified that she went immediately to her own apаrtment in the building. Her mother, who arrived home within a short time thereafter, testified that she observed the complainant, who the mother stated was 13 years old, in a distraught and disheveled state. Comрlainant’s mother further testified that she immediately examined the girl and observed that the girl’s waist was red.
Section 130.60 of the Pеnal Law (sexual abuse, second degree) provides in relevant part: "A person is guilty of sexual abuse in the second degree when he subjects another person to sexual cоntact and when such other person is: * * * 2. Less than fourteen years old.”
No mention is made in this section of the need for corroboration.
At the end of the case, respondent moved to dismiss the charge for failure to establish the case beyond a reasonable doubt claiming corroboration is an element of the crime of sexual abuse, second degrеe. In doing so, respondent relies upon Arnold D. Hechtman’s commentaries (McKinney’s Cons Laws of NY, Book 39,
There is no requirement in section 130.60 of the Penal Law that there be proof of corroboration of sexual abuse in the second degree — particularly where the facts as here, pleаd, and show to the court’s satisfaction that force was used on the victim. (See People v Yanik,
In ignoring and omitting the requirement of corroboration from the general class of offense, it cannot now be said that the Legislature sought to make corroboration a required element in every case brought under this section. If corroboration is not needed for sexual abuse, first degree, it would seem illogical fоr the Legislature to require corroboration for sexual abuse, second degree, so as to deprive the underage complainant, upon whom force was used, protеction merely because of her age. While, as stated previously, it is true that where lack of consent may be presumed solely because of age — corroboration may then be required under
The case of People v Levinsohn (supra) is particularly relevant to the question at hand. In that case the felony complaint charging defendant with sexual abuse in the first degree was returned to the District Court for rеconsideration in the “interest of justice” and a prosecutor’s information charging sexual abuse, third degree, was then filed. The defendant moved to dismiss the indictment arguing that corroborаtion was necessary. The court stated that (p 793) “[r]egardless of whether lack of consent stems from age, clearly here it also stems from nonacquiescence, thus rendering cоrroboration unnecessary since it does not stem solely from incapacity to consent.”
As an ancillary argument respondent argues that the act of thrusting one’s penis into the buttocks of the struggling complainant while both werе fully clothed does not constitute “sexual contact” within the meaning of the statute. In support of his argument respondent again cites Mr. Hechtman’s commentaries which indicate that sexual abuse requires touching or manipulation of the sexual parts of the victim. Once again, I must disagree with the commentaries. The abuse of one’s body and privacy with the intention to оbtain sexual gratification on the part of the abuser is sufficient to constitute sexual abuse. It clearly was the intention of the Legislature to insulate a person from this type of attack. There is no requirement that erogenous zones of the victim be touched or manip
Further argument advanced by respondent’s attorney that the charge of unlawful imprisonment, sеcond degree, under section 135.05 of the Penal Law does not exist independently of the charge of sexual abuse, second degree, is equally without merit. (People v Bianchi,
Clearly, the elements of each of these crimes are totally different and each can stand independent of the other. There can be the crime of sexual abuse, second degree (e.g., underage victim who without resistance engages in acts of sexual abuse, second degree), without an unlawful imprisonment. And, of course, by the same token the reverse is true.
In support of his theory respondent relies on People v Goldberg (supra). A reading of that case, however, does not support respondent’s position on either the fact or the law. Indeed, the case would appear instead to support the theory that these are indeed independent charges. In that case the Appellate Division reversed the Supreme Court’s dismissal of an information charging unlawful imprisonment and endangering the welfare of a child on the grounds that these crimes were intrinsically relatеd to and committed in the act of rape which required corroboration. The Appellate Division there stated specifically that (p 904) "corroboration of the comрlainant’s testimony was not required, since the crimes of which the defendant stands charged were completely independent of the earlier act of consummated rape сharged by the complainant.”
The cases which have held that there is a merger of the crime of kidnapping and lesser crimes are also inapplicable to the chargе of unlawful imprisonment. Even as applied to kidnapping the purpose of these cases was not to exclude all abductions designed to effect other crimes. Instead, the purpose of these cases is to prevent gross distortions of lesser crimes into the far more serious crime of kidnapping when the asportation was an inseparable part of the ultimate crime. This theory and its purpose have no appropriate application to unlawful imprisonment. (People v Watson,
Petition sustained.