OPINION OF THE COURT
We hold that, in the absence of any statutory requirement for corroboration, consonant with the reflection of social attitudes in prevailing legislative policy, the sworn testimony of a child complainant under the age of 12 need not be corroborated in a prosecution for her forcible rape. We also conclude that, in the circumstances of this case, defendant’s guilt was proved beyond a reasonable doubt.
Defendant James Fuller was convicted upon a jury verdict of two counts of first degree rape growing out of a single criminal episode. The indictment was brought on two theories, that he "engage[d] in sexual intercourse with a female by forcible compulsion” (Penal Law, § 130.35, subd 1), and that the act was committed upon "a female who [was] less than eleven years old” (Penal Law, § 130.35, subd 3).
The facts, as they emerged at trial, were as follows:
The 38-year-old defendant lived in a common-law relationship with the mother of four children, one of whom, 10-year-old Dawn, was the complainant. At trial, after the court had conducted a voir dire to satisfy itself that she understood the nature of an oath (CPL 60.20 subd 2),
Shortly thereafter, a third person, to whom the mother related what she had observed, called the police. Upon their arrival, the arresting officer later told the jury defendant after receiving Miranda warnings, admitted that "he was in bed in the bedroom with the little girl”. Also introduced at trial was evidence that a doctor, who shortly after the incident examined young Dawn, found a redness at the entrance to the vagina consistent with though not necessarily produced by a fresh act of intercourse. He was unequivocal, however, in his testimony that her hymen was gone, a condition the time of whose creation remained somewhat clouded by Dawn’s statement to the doctor, and eventually to the trial court and jurors, that she had engaged in intеrcourse with the defendant on at least two prior occasions.
Taking the stand in his own defense, the defendant denied that he had ever engaged in sexual intercourse with Dawn and denied making the inculpatory statement to the police. On both direct and rebuttal, Mrs. Fuller was called by the People under circumstances which we hereinafter recite.
On appeal, the Appellate Division modified the judgment by reversing and dismissing on the nonforcible count because the complainant’s testimony lacked the corroboration necessary to sustain a conviction of that offense (Penal Law, § 130.16);
We begin by noting that when the offense of rape in the first degree is committed by an act of forcible compulsion (Penal Law, § 130.35, subd 1), as opposed to an otherwise unforced act of intercourse with one who, because of age, is rendered incapable of consent (id., subd 3), the Legislature has not seen fit to impose any requirement that the victim’s testimony be corroborated (cf. People v Bianchi,
But Oyóla and Porcaro are not to be read so broadly. Both cases were decided by sharply divided courts and in neither was a requirement of corroboration decisive.
Oyóla involved a conviction for impairing the morals of a minor and for assault committed on a 10-year-old girl. True, the three Judges who joined in the plurality opinion for reversal, after noting that existing legislation imposed a corroboration requirement both for rape cases involving adult females and for all cases involving the unsworn testimony of a child under 12, were critical of the statutory scheme to a point where it could be inferred that they favored either legislative or judicial adoption of a similar rule for cases like the one before them (People v Oyola, supra, at pp 262-264).
But they did not venture to do so. Instead, after an extensive analysis of the quality of the prosecution’s evidence, citing People v Ledwon (
In Porcaro, like Oyóla, the defendаnt had been convicted of impairing the morals of a minor and the evidence consisted entirely of sworn testimony by a 10-year-old child. Again three Judges voted to reverse, this time (at p 252) "[f]or the reasons stated in People v. Oyola,” in an opinion focusing on the weakness of the proof and additionally, on the fact that, though the child had been examined by a physician, the findings were never disclosed in court, and, despite repeated requests, the defendant was not allowed to have the child examined (People v Porcaro, supra, p 251). They simply concluded that the evidence was not "clear and convincing” (id., at p 252). The three Oyóla dissenters reiterated their Porcaro views (id., at pp 253-258). The seventh Judge’s rationale was also the same in both cases.
Without gainsaying that the opinions in these cases have generated some confusion, we must reject defendant’s interpretation that they imрose a requirement of corroboration. For, as our analysis suggests, both Porcaro and Oyóla are best understood as cases in which the evidence was not sufficient to prove the defendant guilty beyond a reasonable doubt (People v Oyola, supra, p 261; People v Porcaro, supra, at p 252). And, subsequent decisions have limited them as "thin proof’ cases (People v Nisoff,
Moreover, whatever intimations those decisions may contain in the direction of a judicially imposed corroboration rule must be considered in light of the statutory requirements of corroboration which then existed. Though at common law the uncorroborated testimony of the female victim in any sex offense case was sufficient to support a conviction (7 Wigmore, Evidence [Chadbourn rev ed], § 2061, p 451), corroboration requirements came to be introduced by statute to protеct against the perceived danger of false accusations, easy to make but difficult to rebut (see People v Friedman,
But, even if it be thought that the Oyóla decision intended to effect a harmonization among these statutes, the intervening décades havе witnessed revisions in the statutory corroboration rules that, in turn, manifest a marked change in legislative policy.
In all other instances, including prosecutions for the most serious offenses in the Penal Law, the only qualification that remains is the one set out in CPL 60.20 (subd 3). Unchanged in the face of all the revisions, it continues the long-standing rule that the necessity for corroboration of the testimony of a child under the age of 12 rests solely on whether, as determined by the Judge before whom the testimony is to be given, the child understands the nature of an oath. Age alone is no testimonial infirmity (see Wheeler v United States,
These precepts in mind, in this case Dawn’s detailed testimony established every element of the rape, including defendant’s use of force in pressing her shoulders down against the bed so that her efforts at wriggling away from him were unsuccessful. She also attested to the fact of penetration. And her recitation that the dеfendant had previously committed other acts of intercourse upon her were admissible to show defendant’s amorous design (People v Thompson,
But here there was much more than this. The physician’s testimony, the defendant’s confession to the police and the testimony from the defendant’s own mother as to how she had happened upon her son in the girl’s bedroom that night and what she saw and heard there, these were all telling.
We turn nоw briefly to consider defendant’s contention that the trial court committed reversible error in allowing the prosecutor to introduce prior inconsistent statements to impeach Ethel Fuller.
The witness was the first to be called on the prosecution’s case but, apparently to the surprise of the District Attorney, after answering a few preliminary questions, she staunchly refused to respond in any meaningful fashion to further inquiries. She did not merely state that she could not recollect the events of that evening. Rather, by an unending litany of responses, which varied only among "I don’t know”, "I couldn’t say” and "I can’t tell you anything”, the witness manifested a conscious intent to frustrate the People’s case. Moreover, when, in response to prosecutor’s attempt to refresh her recollection, the witness would not even look at her prior Grand Jury testimony even in the face of an express direction from the court that she do so, she was held in contempt and withdrawn from the stand.
Nevertheless, in rebuttal to the defendant’s testimony, the People recalled Ms. Fuller, who this time stated, consistent with her sworn and written pretrial statements, that on the night in question she heard noises emanating from Dawn’s bedroom аnd saw the defendant lying on the bed, Dawn in tears. On cross-examination, though, the witness recanted this version, several times responding that she only observed the defendant alone in his own bedroom that night. It was after this, on redirect, that the prosecutor was permitted to introduce, over defense objection, prior inconsistent statements she had made, namely a brief signed transcript of her initial interview with the police and the relevant portions of her
Defendant claims that impeachment of the prosecutor’s own witness fell outside the bounds of CPL 60.35 (subd 1), which allows prior written or sworn statements to be introduced for that purpose only "[w]hen, upon examination by the party who called him, a witness in a criminal proceeding gives testimony upon a material issue of the case which tends to disprove the position of such party” (see People v Fitzpatrick,
However, we agree with the majority оpinion of Mr. Justice Greenblott at the Appellate Division that, considered in the context in which it occurred, the use of the impeaching matter must be said to have been harmless (see People v Dackowski,
In concluding, we also note that, having considered the other points raised by the defendant, we find them lacking in merit.
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur.
Order affirmed.
Notes
. CPL 60.20 (subd 2) provides in pertinent part: "A child less than twelve years old may not testify under oath unless the court is satisfied that he understands the nature of an oath. If the court is not so satisfied, such child or such witness over twelve' years old who cannot, as a result of mental disease or defect, understand the nature of an oath, may nevertheless be permitted to give unsworn evidence if the court is satisfied that the witness possesses sufficient intelligence and capacity to justify the reception thereof’. Subdivision 3 goes on to say that "[a] defendant may not be convicted of an offense solely upon unsworn evidence given pursuant to subdivision two”.
. The statute in its entirety, reads as follows:
"A person shall not be convicted of consensual sodomy, or an attempt to commit the same, or of any offense defined in this artiсle of which lack of consent is an element but results solely from incapacity to consent because of the alleged victim’s age, mental defect, or mental incapacity, or an attempt to commit the same, solely on the testimony of the alleged victim, unsupported by other evidence tending to:
"(a) Establish that an attempt was made to engage the alleged victim in sexual intercourse, deviate sexual intercourse, or sexual contact, as the case may be, at the time of the alleged occurrence; and
"(b) Connect the defendant with the commission of the offense or attempted offense.”
. The Oyóla court pointed out that the child’s version of the incident had been rehearsed under her mother’s direction at least five times before the story was tоld to anyone else. In addition, the mother’s lawyer had instructed the child "to remember that she would have to repeat the same testimony in a matrimonial action against her father” (People v Oyola,
. Perhaps taking heed of this intimation in Oyóla, when the Legislature revised the Penal Law in 1967, it extended the requirement of corroboration of the elements of penetration and identity to a broad range of sex offenses defined in article 130 (Penal Law, § 130.15), eventually including endangering the welfare of a child. Largely because of the resulting difficulties in securing convictions for sex crimes (see Ludwig, Case for Repeal of the Sex Corroboration Requirement in New York, 36 Brooklyn L Rev 378, 386), the corroboration rules were amended in 1972 to require merely some evidence tending to establish attempt to engage in the proscribed sexual
. Of course, it may be argued that Ms. Fuller’s role as a witness at the trial is not to be segmented and that both of her trips to the stand should be treated as a whole in determining whether the statutory standards have been met. So considered, her persistent refusal to answer questions propounded by the District Attorney in fact may have foreordained the nature of her responses on cross-examination. And it may raise the interesting issue of whether the patently evasive and contumacious responses on direct were so clearly intended to affirmatively damage the People’s case as to equate it with conventional testimonial conduct (see People v Fitzpatrick,