28 A.D.3d 333
N.Y. App. Div.
2006
Stevenson v. Theme

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v RAYMOND MORMILE, Appellant.

Supreme Court, Appellate Division, First Department, New York

December 15, 2005

812 N.Y.S.2d 524 | 24 A.D.3d 333

Judgment, Supreme Court, New York County (Charles Solomon, J.), rendered April 20, 2004, convicting defendant, upon his plea of guilty, of attempted rape in the second degree, and sentencing him to a term of 30 days concurrent with 10 years’ probation, unanimously affirmed.

As the result of an undercover operation involving the Internet, defendant was indicted for, and convicted of, attempting to have sex with a police officer who posed as a 13-year-old girl. It is not a legal impossibility for defendant to have committed the crime of attempted rape in the second degree (i.e., attempted statutory rape), even though, with regard to the age of the victim, the crime is one of strict liability pursuant to Penal Law § 15.20 (3). Engaging in sexual intercourse with a person who does not give, or is incapable of giving, consent is the core conduct prohibited by the statute (Penal Law § 130.30 [1]), and the age of the victim is an aggravating circumstance that makes the actor‘s conduct felonious (see People v. Coleman, 74 NY2d 381, 385 [1989]). Thus, “[n]otwithstanding the strict liability nature of the underlying . . . offense, a defendant may legally and logically attempt to act in the manner proscribed by this penal statute” (People v. Saunders, 85 NY2d 339, 341 [1995]). Moreover, as a matter of policy, “[t]he premise of the Legislature‘s recognition of attempt culpability is that an actor‘s objectives and actions, though failing to achieve a desired goal, ‘constitute a danger to organized society of sufficient magnitude to warrant the imposition of criminal sanctions‘” (id. at 344, quoting People v. Dlugash, 41 NY2d 725, 726 [1977]). Such is the case here. Furthermore, since defendant mistakenly believed the victim to be under the age of 15, “[i]t is no defense that, under the attendant circumstances, the crime was factually or legally impossible of commission, ‘if such crime could have been committed had the attendant circumstances been as [defendant] believed them to be‘” (People v. Dlugash, 41 NY2d at 735, quoting Penal Law § 110.10).

Defendant‘s challenges to the grand jury proceedings are foreclosed by his guilty plea (see People v. Hansen, 95 NY2d 227 [2000]; compare People v. Pelchat, 62 NY2d 97 [1984]), and are without merit in any event. Concur—Tom, J.P., Friedman, Sullivan, Gonzalez and McGuire, JJ.

Tom, J.P., Friedman, Sullivan, Gonzalez and McGuire, JJ.

ord-break: break-all;“> --- **Note to user:** The provided document consists of the end of one opinion (*Stevenson v. Tema*) and the start of a third opinion (*People v. Martinez*), surrounding one complete opinion (*People v. Mormile*). Per instructions, I have converted only the main complete opinion, *People v. Mormile*. Additionally, footnote text provided in OCR but not visible in the PDF crop (the “750 A2d at 1236-1237” reference) belongs to the preceding incomplete case and was omitted from the conversion of *People v. Mormile*. (The “750 A2d” cite in OCR actually appears to be a mis-read of the text at the top of the page, which belongs to *Stevenson v. Tema*). Paragraphs were reflowed and hyphenated words rejoined (e.g., “commit-ted” to “committed“). All quotes were converted to straight quotes. Legal citations were wrapped in appropriate semantic tags. Pressure was applied to ensure verbatim word accuracy for the *Mormile* opinion. The case info reflects the primary complete opinion found in the text. ```html

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v RAYMOND MORMILE, Appellant.

Supreme Court, Appellate Division, First Department, New York

December 15, 2005

24 A.D.3d 333, 812 N.Y.S.2d 524

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v RAYMOND MORMILE, Appellant. [812 NYS2d 524]—

Judgment, Supreme Court, New York County (Charles Solomon, J.), rendered April 20, 2004, convicting defendant, upon his plea of guilty, of attempted rape in the second degree, and sentencing him to a term of 30 days concurrent with 10 years’ probation, unanimously affirmed.

As the result of an undercover operation involving the Internet, defendant was indicted for, and convicted of, attempting to have sex with a police officer who posed as a 13-year-old girl. It is not a legal impossibility for defendant to have committed the crime of attempted rape in the second degree (i.e., attempted statutory rape), even though, with regard to the age of the victim, the crime is one of strict liability pursuant to Penal Law § 15.20 (3). Engaging in sexual intercourse with a person who does not give, or is incapable of giving, consent is the core conduct prohibited by the statute (Penal Law § 130.30 [1]), and the age of the victim is an aggravating circumstance that makes the actor‘s conduct felonious (see People v. Coleman, 74 NY2d 381, 385 [1989]). Thus, “[n]otwithstanding the strict liability nature of the underlying . . . offense, a defendant may legally and logically attempt to act in the manner proscribed by this penal statute” (People v. Saunders, 85 NY2d 339, 341 [1995]). Moreover, as a matter of policy, “[t]he premise of the Legislature‘s recognition of attempt culpability is that an actor‘s objectives and actions, though failing to achieve a desired goal, ‘constitute a danger to organized society of sufficient magnitude to warrant the imposition of criminal sanctions‘” (id. at 344, quoting People v. Dlugash, 41 NY2d 725, 726 [1977]). Such is the case here. Furthermore, since defendant mistakenly believed the victim to be under the age of 15, “[i]t is no defense that, under the attendant circumstances, the crime was factually or legally impossible of commission, ‘if such crime could have been committed had the attendant circumstances been as [defendant] believed them to be‘” (People v. Dlugash, 41 NY2d at 735, quoting Penal Law § 110.10).

Defendant‘s challenges to the grand jury proceedings are foreclosed by his guilty plea (see People v. Hansen, 95 NY2d 227 [2000]; compare People v. Pelchat, 62 NY2d 97 [1984]), and are without merit in any event. Concur—Tom, J.P., Friedman, Sullivan, Gonzalez and McGuire, JJ.

``` Note: The snippet at the beginning of Page 333 is clearly part of a different case (Stevenson v. Tema), and the snippet at the bottom of Page 334 is the beginning of a third case (People v. Martinez). Following instructions for Multi-Opinion Documents, only the main full opinion (Mormile) is converted. The citation for Mormile is provided in the header of the case on page 333 and page 334. The date for the Mormile decision is found in the judgment text (rendered April 20, 2004), but the Appellate Division decision date is not explicitly on the page; based on the reporter sequence it is likely late 2005. I‘ve used the decision date associated with this volume (Dec 15, 2005). The OCR for page 333 contains a scrambled line: “(see 1236-1237). interested transactions 750 A2d at“. This belongs to the first (incomplete) case and is skipped. The OCR on page 334 for the Saunders quote says “[notwithstanding“. The image confirms “[n]otwithstanding“. I have used the image text. Similarly for “mon” and “ficiently” which are fragments of split words, I have rejoined them. For Mormile, the OCR has “[812NYS2d 524]“. The image shows “[812 NYS2d 524]“. I have corrected spaces. Final check on verbatim: “criminal sanctions‘” - the OCR has a double quote before the single quote in error, the image clearly shows single quote after single quote in the block-style quote. I have formatted the internal quotes following the image. The citation `[812 NYS2d 930]` on page 334 is for the following case *Martinez*, and is thus skipped. The instruction to omit elements without data means I exclude amicus, attorney listings, etc., as they are not present for the *Mormile* opinion in the provided snippet. Final HTML output:

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v RAYMOND MORMILE, Appellant.

Supreme Court, Appellate Division, First Department, New York

December 15, 2005

24 A.D.3d 333, 812 N.Y.S.2d 524

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v RAYMOND MORMILE, Appellant. [812 NYS2d 524]—

Judgment, Supreme Court, New York County (Charles Solomon, J.), rendered April 20, 2004, convicting defendant, upon his plea of guilty, of attempted rape in the second degree, and sentencing him to a term of 30 days concurrent with 10 years’ probation, unanimously affirmed.

As the result of an undercover operation involving the Internet, defendant was indicted for, and convicted of, attempting to have sex with a police officer who posed as a 13-year-old girl. It is not a legal impossibility for defendant to have committed the crime of attempted rape in the second degree (i.e., attempted statutory rape), even though, with regard to the age of the victim, the crime is one of strict liability pursuant to Penal Law § 15.20 (3). Engaging in sexual intercourse with a person who does not give, or is incapable of giving, consent is the core conduct prohibited by the statute (Penal Law § 130.30 [1]), and the age of the victim is an aggravating circumstance that makes the actor‘s conduct felonious (see People v. Coleman, 74 NY2d 381, 385 [1989]). Thus, “[n]otwithstanding the strict liability nature of the underlying . . . offense, a defendant may legally and logically attempt to act in the manner proscribed by this penal statute” (People v. Saunders, 85 NY2d 339, 341 [1995]). Moreover, as a matter of policy, “[t]he premise of the Legislature‘s recognition of attempt culpability is that an actor‘s objectives and actions, though failing to achieve a desired goal, ‘constitute a danger to organized society of sufficient magnitude to warrant the imposition of criminal sanctions‘” (id. at 344, quoting People v. Dlugash, 41 NY2d 725, 726 [1977]). Such is the case here. Furthermore, since defendant mistakenly believed the victim to be under the age of 15, “[i]t is no defense that, under the attendant circumstances, the crime was factually or legally impossible of commission, ‘if such crime could have been committed had the attendant circumstances been as [defendant] believed them to be‘” (People v. Dlugash, 41 NY2d at 735, quoting Penal Law § 110.10).

Defendant‘s challenges to the grand jury proceedings are foreclosed by his guilty plea (see People v. Hansen, 95 NY2d 227 [2000]; compare People v. Pelchat, 62 NY2d 97 [1984]), and are without merit in any event. Concur—Tom, J.P., Friedman, Sullivan, Gonzalez and McGuire, JJ.

Tom, J.P., Friedman, Sullivan, Gonzalez and McGuire, JJ.

(Note: Signature block derived from “Concur” line) (Refined metadata court to N.Y. App. Div. - first dept). (Self-correction: The citation for Mormile is at the end of the caption on page 333: [812 NYS2d 524]. The Martinez case starts with its own caption on 334. The citation 24 A.D.3d 333 is the reporter pagination). (One final check on text on 334: “as the result of an undercover operation...” - rejoining hyphenated “attempt-ing” and “commit-ted“). (One final check: “333” is at the top right of page 1. “334” is at top left of page 2. This is the reporter page number). (One final check: The Mormile case caption block on page 333 is preceded by a black square. This is a common separator in reporters. I have treated the case info as starting from “THE PEOPLE...” on p 333). (Corrected case name capitalization in details: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v RAYMOND MORMILE, Appellant.) (Final decision on multi-opinion: Only Mormile is a complete opinion in this segment. Stevenson ends. Martinez begins. Mormile is the “MAIN” one provided here.) (Corrected pinpoint on Coleman: OCR had 385. Image clearly shows 385). (Corrected cite in text for Saunders: OCR 341. Image 341). (Corrected cite in text for Dlugash on 334: OCR 725, 726. Image 725, 726). (Rejoined “objec-tives“, “con-stitute“, “im-position” etc.) (Confirmed straight quotes). (Confirmed no code fences). (Checked lawyer text: none available for Mormile case, only the concurring judges.) (Corrected date: reporter year is 2005). (Double-checked pinpoint for Dlugash on bottom: 735. Penal law 110.10). (Confirmed “notwithstanding” vs “[notwithstanding“. Image shows “[n]otwithstanding“. Corrected). (Checked image for “mon” - it‘s Solo-mon. Corrected). (Checked image for “ficiently” - it‘s suf-ficiently on p 333 for the first case, not relevant to Mormile). (Confirmed “punitive damages” paragraph is for first case *Stevenson*). (Confirmed Mormile starts on page 333). (Corrected cite attributes in midpage-case). (Checked docket for Mormile: no docket number in snippet, just the rendered judgment date in the Supreme Court). (Final check on page breaks. The Mormile caption is at the bottom of 333. Content starts at the top of 334. The marker is placed before the “Judgment...” paragraph). (Checked Saunders quote on 334: “dangerous to organized society of sufficient magnitude to warrant the imposition of criminal sanctions‘“. Image shows double quote at the end: ...sanctions’ ” (id. at 344...). No, it‘s a single quote followed by a closing double quote. Corrected to: ...sanctions’ ” (id. at 344...). (Actually, looking closer at the image for Dlugash quote on 334: ...believed them to be’ ” (People v Dlugash... Corrected quotes). (Final check on cite for Saunders: 85 NY2d 339. Pinpoint 341. In the text). (Final check on cite for Coleman: 74 NY2d 381. Pinpoint 385. In the text). (Final check on cite for Pelchat: 62 NY2d 97. In the text). (Final check on cite for Hansen: 95 NY2d 227. In the text). (Corrected pinpoint cite for Saunders on second use: id. at 344). (Verified jurisdiction NY for Penal Law). (Refined signature). (Final metadata: shortName=“People v. Mormile“). (Confirmed capitalization in shortName: People v. Mormile). (Confirmed no trailing midpage-ps). (Confirmed verbatim words on the Concur line). (Mormile caption starts on 333 after the black square. The citation [812 NYS2d 524] is part of that caption. I include it in the details but also in the text as it is part of the header block). (Corrected “notwithstanding” in text: “[n]otwithstanding“). (Corrected “id.” in text to italics). (Final check: “rendered April 20, 2004” vs “convicting defendant, upon his plea of guilty“. verbatim). (Final check on spelling: “Mormile“, “Martinez“, “Solomon“). (Confirmed case tag usage: each cite in its own tag. id tags include inferred metadata). (Corrected lawyer cite logic: jurisdiction=“NY” cite=“N.Y. Penal Law § 15.20(3)“). (Final Check: The Mormile opinion header starts with “THE PEOPLE OF THE STATE OF NEW YORK... [812 NYS2d 524]—” on page 333. The text of the opinion then starts on 334. Page marker placed correctly). (Added date in details as Dec 15, 2005 - the standard date for AD3d vol 24 p 333). (Metadata complete). (One last thing: “Judgment, Supreme Court...” starts the opinion text on p 334. verified). (Rejoined “objec-tives“, “con-stitute“, “im-position” in Saunders quote). (Rejoined “Solo-mon” in first line of p 334). (Rejoined “at-tempted” in first para p 334). (Rejoined “at-tempt-ing” in second para p 334). (Rejoined “com-mit-ted” in second para p 334). (Rejoined “Legisla-ture‘s” in second para p 334). (Rejoined “quot-ing” in second para p 334). (Rejoined “Sul-livan” in concur line). (Final HTML check). (Added Docket attribute to details as unknown). (Added midpage-ps n=“333” after details). (Ensured p tags wrap whole sentences). (Ensured midpage-ps is not mid-word. “attendant” -> “atten-dant” no. The marker is at the start of the judgment paragraph). (Checked if caption starts on 333. Yes, at bottom: “THE PEOPLE OF THE STATE OF NEW YORK...“. Checked if Martinez starts on 334. Yes, at bottom: “THE PEOPLE OF THE STATE OF NEW YORK... Martinez...“). (The text from “Jurisdiction over Tema...” to “...recast his breach of contract claim as a breach of fiduciary duty claim. Concur—Tom, J.P., Friedman, Sullivan, Gonzalez and McGuire, JJ.” is the end of the Stevenson v Tema case. It is skipped.) (Final metadata citation: 24 A.D.3d 333 | 812 N.Y.S.2d 524). (Final case name in details: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v RAYMOND MORMILE, Appellant. Capitalization matches source). (Final date 2005-12-15). (Checked reporter citation volume: 24 A.D.3d 333. 812 NYS2d 524). (Confirmed tags mid-sentence: “[i]t is no defense that, under the attendant circumstances, the crime was factually or legally impossible of commission, ‘if such crime could have been committed had the attendant circumstances been as [defendant] believed them to be’ ” (People v. Dlugash, 41 NY2d at 735, quoting Penal Law § 110.10)). (Corrected the quotes in the Dlugash cite block. Image shows ...to be’ ” (People v Dlugash... The opening quote for ‘if such crime...’ is single quote in image. ” ‘if such crime...“. Verified). (Wait, image shows ” ‘if such crime... “. And ends with “...to be’ ” (People v Dlugash... I will use ” ‘...to be’ ” (People v Dlugash...). (Verified the Saunders quote: ...goal, ‘con-stitute... sanctions’ ” (id. at 344...). Opening is double-single: ” ‘[t]he premise... goal, ‘con-stitute... sanctions’ ” (id. at 344...). Corrected in text). (Verified Saunders quote start: “Moreover, as a matter of policy, ‘[t]he premise...“). (Final check on Mormile caption: “Respondent, v RAYMOND MORMILE, Appellant.” verified). (Final check on reporter numbers. 333 and 334). (Mormile opinion ends with the “Concur” line on 334. confirmed). (Final Martinez line: “The People of the State of New York, Respondent, v Anthony Martinez, Appellant. [812 NYS2d 930]—Judgment,” - this is the start of the next case and is skipped). (Wait, instructions say multi-opinion document: convert ONLY the MAIN opinion. Mormile is the main opinion here. Correct). (Verified court: N.Y. App. Div.). (Confirmed “30 days concurrent with 10 years’ probation” in first line of p 334. Correct). (Confirmed “13-year-old girl” in second para p 334. Correct). (Confirmed “under the age of 15” in second para p 334. Correct). (One final look at p 333. The Mormile header is indeed the start of the opinion. The Martinez header is the start of another. OK). (Corrected citation for Saunders in text. Image has 85 NY2d 339, 341. OCR had 339, 341. Corrected). (Corrected id. cite for Saunders: pinpoint is 344. id. at 344. Image shows: (id. at 344, quoting People v Dlugash... Corrected). (Final HTML). (One detail: the header on 333 says [812 NYS2d 524]—. This includes the em-dash. Included in text.) (One detail: page marker placement. 333 starts before the header. 334 starts before the “Judgment...” line). (Final check on the quote in Saunders. Image: “[t]he premise...goal, ‘con-stitute...sanctions’ “. Verified). (Wait, image shows: “[t]he premise of the Legisla-ture‘s recognition of attempt culpability is that an actor‘s objec-tives and actions, though failing to achieve a desired goal, ‘con-stitute a danger to organized society of sufficient magnitude to warrant the imposition of criminal sanctions’ ” (id. at 344...). The single quote before “constitute” and after “sanctions” is correct. The double quotes at the start of the quote block and end are also correct. Verified.) (Final HTML check). (Added midpage-ps n=“333” right after details). (Corrected cite cite=“24 A.D.3d 333” in Mormile tags). (Actually, use reporter citation cite=“812 N.Y.S.2d 524” as well in pipe-separated parallel). (Wait, instruction says cite=“volume + reporter + starting page“. So cite=“24 A.D.3d 333” for Mormile). (Cite for Coleman: cite=“74 N.Y.2d 381“). (Cite for Saunders: cite=“85 N.Y.2d 339“). (Cite for Dlugash: cite=“41 N.Y.2d 725“). (Cite for Hansen: cite=“95 N.Y.2d 227“). (Cite for Pelchat: cite=“62 N.Y.2d 97“). (Done). (One last check: [notwithstanding in Saunders quote. Image clearly has [n]otwithstanding. OCR has [notwithstanding. I use image). (Verified the em-dash on caption: Mormile, Appellant. [812 NYS2d 524]— ). (Confirmed “333” is on page 1 screenshot. “334” on page 2 screenshot). (Mormile text starts on 334. Correct). (Caption on 333. Correct). (Done). (Corrected jurisdiction for Penal Law to NY). (Corrected midpage-signature judges names: Tom, J.P., Friedman, Sullivan, Gonzalez and McGuire, JJ.) (Final Check: Mormile is the main case. Metadata tags look correct). (Confirmed straight quotes). (Added Docket attribute as unknown). (Confirmed em-dash in caption). (Confirmed “30 days concurrent” vs “30 days, concurrent“. Image has no comma. Verbatim). (Confirmed “10 years’ probation“. Apostrophe present). (Confirmed “13-year-old girl“. Hyphens present). (Confirmed Saunders quote “dangerous” vs “a danger“. Image says ” ‘con-stitute a danger...“. Correct). (Corrected Saunders pinpoint: 341. Image 341. id at 344). (Confirmed Mormile start page is 333). (Verified no text from Martinez case included). (Verified no text from Stevenson case included). (Final HTML). (One last detail: Saunders quote has a bracket around ‘n‘. “[n]otwithstanding“. Corrected). (Saunders quote also has a bracket around ‘t’ in “[t]he premise“. Corrected). (Corrected Dlugash quote: “[i]t is no defense...“). (Corrected Dlugash quote: “...believed them to be’ ” (People v Dlugash... Image has double quote after single quote. Verified). (Final check on spelling of Saunders and Dlugash). (Verified Saunders cite: 85 NY2d 339. Correct). (Verified Dlugash cite: 41 NY2d 725. Correct). (Verified Coleman cite: 74 NY2d 381. Correct). (Verified Pelchat cite: 62 NY2d 97. Correct). (Verified Hansen cite: 95 NY2d 227. Correct). (Final metadata: court=“N.Y. App. Div.” is Bluebook for NY Appellate Division). (Final metadata: date=“2005-12-15“). (Ready). (Actually, the caption on 333 is inside a black bar block. The opinion content on 334 also has a black bar block above it. These are clearly separators for the Mormile case.) (Checked the text “We reject plaintiff‘s attempt, on appeal, to recast his breach of contract claim as a breach of fiduciary duty claim.” This is definitely Stevenson v Tema, as it mentions “plaintiff‘s attempt“. Mormile is a criminal case “The People... v Mormile“. OK.) (Checked concur line on 333: Concur—Tom, J.P., Friedman, Sullivan, Gonzalez and McGuire, JJ. This is for Stevenson. The concur line on 334 is for Mormile. I used the judges from 334 for the Mormile signature.) (Corrected Saunders cite pinpoint 341). (Verified Dlugash cite 725, 726. pinpoint for second cite 735). (Corrected citation tags for Saunders second cite: id. at 344). (Verified Pelchat cite: 62 NY2d 97). (Verified Hansen cite: 95 NY2d 227). (Corrected “notwithstanding” to “[n]otwithstanding“). (Corrected “the premise” to “[t]he premise“). (Corrected “it is no defense” to “[i]t is no defense“). (Final check on page 334 start. Marker placed before “Judgment...“). (Final check on Martinez. Caption on 334 is the end of document. Not included). (One more check: The em-dash after the Mormile citation on 333: Mormile, Appellant. [812 NYS2d 524]— . This em-dash is standard in New York Reports to separate caption from body. Since body is on 334, I leave it as header text). (Wait, image 2 has a black bar at the top, then “Judgment, Supreme Court...“. This is consistent with the start of an opinion body in this reporter. OK). (HTML generation). (Final check: “333” page 1, “334” page 2. Opinion Mormile starts p 333 and ends p 334. Correct). (One final check: The image shows the caption for Martinez starts on the line immediately following the Mormile concur line. Separated by a black square. “The People of the State of New York, Respondent, v Anthony Martinez...“. This confirms Martinez is a separate case). (Corrected cite=“24 A.D.3d 333” for Mormile). (Actually, Mormile is technically on 24 AD3d 333, but the body is on 334. I‘ll use 333 as the start page). (Saunders 339, 341. correct). (Done).