At a preliminary hearing, held before this court, the defendant was charged with a felony of attempted .sodomy and endangering the welfare of a minor, a misdemeanor.
The charges, contained in the affidavit of the mother of an eight-year-old boy, state that the defendant, seated in an automobile callеd the child to the car and offered him money to commit an act of sodomy. The hoy rejected the offer and reported the incident to his mother the same day.
At the preliminary hearing, the sworn testimony of the arresting officer supported some details of the boy’s unsworn account.
The child’s evidence, bоth in chief and under cross-examination, made it clear that the defendant remained in his automobile, drove past the child without stopping or changing the direction of the vehicle, that he kept his hands on the steering wheel and did not expose himself.
Section 110.00 of the Penal Law defines an attempt as follows:
‘ ‘ A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of a crime.”
It derives from section 2 of the old Pеnal Law which defined an attempt as “ an act, done with intent to commit a crime, and tending but failing to effect its commission”.
According to the annotations in the McKinney’s edition of the Penal Law (Book 39, p. 180), the attempt had to proceed beyond mere preparation and approach consummаtion of the forbidden act.
The People assert that the defendant, by slowing down his vehicle to keep pace with the infant’s gait and by offering him money to commit fellatio on him, engaged in a direct effort to commit sodomy. By focusing his solicitation on a specific person, the defendant had progressed from preparation — the search for a likely victim of his advances — to an attempt.
People v. Ditchik (
Other cases, principally People v. Rizzo (
In short, in the words of the Official Draft of the Model Penal Code (§ 5.01) the “ substantial step in a course оf conduct planned to culminate in * * * commission of a crime ” must be “ strongly corroborative of the actor’s criminal purpose.”
The court’s inquiry must then focus on whether verbal solicitation of another to engage in criminal conduct is~an attempt to commit a crime.
In the absence of any reportеd New York case on this point, we must rely on other sources.
The general proposition stated in American Jurisprudence (2d ed., vol. 21, § 113) is as follows: “ Though solicitation may constitute an element in some attempts, the usual view seems to be that soliciting another to commit a crime is not, by itself,
The majority view is set forth in Gervin v. State (
To the same effect is State v. Blechman (135 N. J. L. 99, 101-102 [1946]) in which the court states: “ The solicitation constitutes a substantive crime in itself and not an abortive attempt to perpetrate the crime solicited. It falls short of an attempt, in the legal sense, to commit the offense solicited.”
In the area of what the Penal Law collectively describes as “ Sex Offenses ” (art. 130), there appears .to be no New York precedent spelling out the distinction between solicitation and attempt.
In the article dealing with adultery, in American Jurisprudence (2d ed., vol. 2, p. 966) the following is stated: “The weight of authоrity also is that solicitation is not an overt act leading up to the commission of the crime, and accordingly solicitation to commit adultery is not an attempt to commit the offense and is not indictable as such.”
In State v. Butler (
In writing the unanimous opinion of the court, sustaining the granting of defendant’s motion in arrest of judgment,
And in another early case, Smith v. Commonwealth (
Very close to the fact situation in the instant case is State v. Harney (
Brace, J. for a unanimous Supreme Court wrote in Harney (supra, p. 472): “ The only charge that can be evolved from the verbose reiterations of this indictment is, that the defendant, by verbal solicitations, tried to obtain the consent of a child under the age of twelve years to have sexual intercourse with him, and failed. However despicable and deserving of punishment such conduct may be, it falls short of the criminal offense attempted to be charged, to constitute which there must be an actual attempt to have intercourse with such child. So long as the evil purpose dwells in contemplation only it is beyond the grasp of these provisions of .the law.
“ The indictment, failing to charge any actual attempt upon the part of the defendant to have sexual intercourse with the child was properly quashed, and the judgment is affirmed.”
Accordingly the defendant cannot be charged with attempted sodomy and that portion of the charge is dismissed.
Since the defendant is not .the complainant’s parent or guardian, the charge must fall within subdivision 1 of the section which makes it a crime to act in a manner likely to be injurious to the physical, mental or moral welfare of a child less than 16 years of age.
The defendant urges that in the absence of physical acts performed to the complainant (People ex rel. Tanis v. Benedict, 28 N. Y. S. 2d 202 [1941]) or in a situation which would impair a child’s morals (People ex rel. Kwiatkowski v. Trenkle,
However, under the predecessor statute, section 483 of the Penal Law which punishes a person who willfully сauses a child under 16 to be placed in a situation where its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, the courts have gone beyond the limited construction urged by defendant.
First, it is made clear by People ex rel. Barber v. Caminiti (28 N. Y. S. 2d 133 [1941]) that there need be no specific intent to injure or impair the child’s morals or proof of actual impairment of morals.
And in People v. Bergerson (17 N Y 2d 398 [1966]) it was held that the defendant, in affording minors with the facilities for a beer party in his home, had violated the statute.
Similarly in People v. Ammirati (
The defendant in this case submits that the child was “ flippant, comрosed and did not display the effects of having been shocked by what took place, if such took place as he states.”
The court questions the implication that a complainant must react to an offer to commit sodomy with manifestations of shock, disgust or revulsion in order to spell out sufficient cause to hold the defendant to answer to the charge of endangering a minor’s welfare.
Perhaps in time society will develop an appropriate response to an invitation to engage in pederasty. However, it may well be doubted that a child of eight will be required to adopt an accepted form of acquiescence or refusal.
The court feels that the solicitation in question is well within the parameters of the activity forbidden by section 260.10 of the Penal Law as endangering the welfare of a child.
By the terms of section 100.05 of the Penal Law, ££ a person is guilty of criminal solicitation in the second degree when, with intent that another рerson engage in conduct constituting a felony, he solicits, requests, commands, or importunes or otherwise attempts to cause such other person to engage in such conduct.”
The People contend that if the charges of attempted sodomy and endangering a minor’s welfare have not been supported by the People’s evidence, the court, in the alternative, should hold the defendant to answer to the crime of criminal solicitation.
The court holds that the solicitation is a separate, additional and not alternative offense, independent of and not necessarily incidental to the commission of the crime solicited, so as to escape .the exempting effects of section 100.20 of the Penal Law.
That section states that a person is not guilty of criminal solicitation when his solicitation is the kind of conduct necessarily incidental to perpetration of the crime. Under such circumstances, according .to the statute, when the solicitation £ ‘ is related to but separate from the crime solicited, ’ ’ the actor is guilty of the related and separate offense only and not of criminal solicitation.
By way of illustration, the commentary to the McKinney’s edition of the Penal Law (§ 100.20) posits the situatiоn in which a public servant, A, seeks a bribe from B, in return for favorable official action. Such conduct is bribe receiving within the prohibition of section 200.10, as well as solicitation to commit bribery. According to the commentators, A may be convicted of bribe receiving only and not of criminal solicitation.
/Here the crime solicited was sodomy. The solicitation was mot necessarily incidental to the crime sought to be perpetrated. The crime charged was an effort to engage in deviate sexual intercourse with a child under 11. (§ 130.50.) Seeking the child’s consent is an independent offense. True, if the invitation had resulted in deviate intercourse, the solicitation would have merged into the completed crime of sodomy.
By its very language section 100.20 implies that the solicitation bore fruit in the form of a completed crime. Unless .this
In any event the court feels that this is a case in which the ‘ ‘ solicitation to commit a crime involves sufficient culpability to warrant criminal sanctions” (McKinney’s Cons. Laws of N. Y., Book 39, Penal Law, p. 169).
The fact that the conduct in question аlso resulted in breach of another section of the Penal Law, namely, endangering the welfare of a minor is not sufficient to merge the solicitation with that offense. In any event, section 279 of the Code of Criminal Procedure permits joinder in one information of acts or transactions giving rise to more than onе crime.
Finally, we face .the question of the impact of the infant’s unsworn testimony.
Section 392 of the Code of Criminal Procedure permits the court to receive the unsworn testimony of a child under 12, but forbids holding or convicting a person upon such testimony “ unsupported by other evidence.”
Here, the infant, after preliminary examination was not sworn. The court felt that administering the oath to a child of eight would be an empty gesture.
The futility of conformity with the letter but not the spirit of the law is illustrated by the holdings of the Court of Appeals in People v. Porcaro (6 N Y 2d 248 [1959]) and People v. Oyola (6 N Y 2d 259 [1959]). In the instant case, the court sought to evaluate the child’s testimony in the light of the supportive testimony of thе child’s mother and the arresting officer.
The child’s testimony was detailed and explicit. He identified the defendant, repeated the defendant’s offer and described the surrounding circumstances clearly and convincingly.
The supporting testimony established defendant’s connection with the commission of .the crime. (People v. Downs,
The supporting evidence required by section 392 of the Code Criminal Procedure meets the test of People v. Masiano (
As was pointed out in People v. Oyola (supra), the law explicitly requires a complainant’s testimony concerning the commission of certain sexual offenses to be corroborated. Although corrоboration is not required in a case involving
In Porcaro (supra), Judge Van Voorhis noted the absence of circumstantial evidence attesting to the veracity of a 10-year-old child.
In People v. Sexton (
To the .same effect is People v. Ortiz (
People v. Tanaglea (
The court will not attempt to differentiate between corroborative or supportive evidence. Suffice it to say that the child’s testimony was supported.
In summary, the defendant will stand trial on charges of criminal solicitation and endangering the welfare of a child. The charge of attempted sodomy is dismissed.