47 A.D.2d 583 | N.Y. App. Div. | 1975
Judgment unanimously modified by reversing the conviction of sexual misconduct arid dismissing that count of indictment, and otherwise judgment affirmed. Memorandum: Appellant was indicted on charges of'rape ih the first degree, sexual abuse in the first degree and sexual misconduct. Following a jury trial, he was acquitted of the rape charge and convicted of the other two. Since there was no--testimony relative io the age of the complainant, except on cross-examination when she stated that she was 16 years old, and no corroboration of this statement in the People’s case, the' conviction of sexual misconduct must be reversed. Appellant contends that since he was acquitted of rape, first degree, and convicted of sexual abuse, first degree, and sexual misconduct,, the verdict is inconsistent and repugnant and must fall. The court adequately explained the differentiation between. rape and sexual abuse to the jury. The latter charge involves the requirement of proof of sexual contact but does not include as an essential element proof of sexual intercourse as is true of rape. People v. Delorio (33 AD 2d 350) effectively disposes of the appellant’s argument that the verdicts of guilty of sexual Abuse and pot guilty of rape are inconsistent. The court there stated (p. 353): “ The two counts in the indictment did not have identical elements, so that a finding of guilty on/one hut not on the other would not be truly repugnant, as opposed to being merely inconsistent”. We stated the rule in People v. Bullis (30 A D 2d, 470, 472) which is applicable here as to the conviction of sexual misconduct: “ When the indictment'charges two crimes, each of which has identical eleménts, a finding of guilty on one but not on the other is truly repugnant, as opposed to being merely inconsistent.” The elements of rape in the first degree chárged here are identical with those of sexual misconduct, and the finding of not guilty on the rape charge is repugnant to the verdict of guilty Of sexual misconduct. The judgment of conviction should be modified by reversing the conviction of sexual misconduct and the judgment of conviction of sexual abuse should be affinfied. (Appeal , from judgment of Niagara County Court convicting defendant of Sexual abuse, first dégree and sexual misconduct.) Present — Marsh, P« J., Witmer, Simons, Mahoney and Goldman, JJ.
