41 A.D.2d 514 | N.Y. App. Div. | 1973
Judgment, Supreme Court, Bronx County, rendered April 26, 1971 (as amended, on resentence, April 28, 1971), after trial to the court without a jury, modified,- on the law, the facts and in the exercise of discretion, to dismiss the first count of the indictment (sodomy, first degree; old Penal Law, § 690); and, further, to reduce the conviction on the second count (assault, second degree; old Penal Law, § 242, subd. 5) to assault, third degree (old Penal Law, § 244, subd. 1), and the sentence thereunder to one year in the penitentiary; and, further, to reduce the sentences under the third, fourth, fifth, and sixth counts to a maximum of five years’ imprisonment on -each count without fixing a minimum term, all such terms of imprisonment to be served concurrently with each other and with the term imposed under the second count, and with the term imposed under the eighth count; and otherwise affirmed. As is observed in the dissent, “ This is indeed a most difficult case ”, involving, as it does, conviction of a father, upon the evidence of his wife and children, of a series of indecent acts committed upon the children. While it is difficult, in the light of one’s own subjective standards, to comprehend the conduct -of the defendant-appellant father, or to appreciate the hesitation of the mother until a late date to bring about his prosecution, it is not impossible to do so when considering the vast divergences in cultural backgrounds which exist in our multi-layered society. The father is-an admitted alcoholic or excessive drinker; it matters not which description is employed. The existence of this affliction is a most important consideration for, no matter how it may be denominated semantically, it is completely consonant with the lack of self-control evident in those who depart from'ordinarily accepted standards of propriety. The milieu from which this family derived is not inconsistent with what most. would regard as weird ideas of the privileges of a husband and father. We should also bear in mind that the cold record is never an adequate substitute for the immediate opportunity of the trier of the fact to form opinions of credibility. (See People v, Regina, 19 N Y 2d 65.) Nor does either People v. Porearo (6 N Y 2d 248) or People v. Oyóla (6 N Y 2d 259) have application here; the evidence in those eases came only from a 10-year-old, whereas here we have not only the testimony of older children, but that of the mother and two children of a neighbor. Nor does the dissent deal with defendant’s strongest weapon at the trial against his wife: a completely unsubstantiated accusation of infidelity. This reckless tactic demonstrates not- alone a defect in defendant’s character but, by its very nature, indicates defendant’s own lack of credibility, thus strengthening that of his wife. And it is never difficult to mount an attack on credibility by finding instances of inconsistency between a witness’ testimony and other evidence in the recital of a course of dealing running over several years. As to the testi