
    The People of the State of New York, Respondent, v. Milan Radunovic, Appellant. The People of the State of New York, Appellant, v. Michael Sigismondi, Respondent. The People of the State of New York, Respondent, v. Louis Roccaforte, Appellant.
    Argued November 1, 1967;
    decided December 28, 1967.
    
      
      Leon Silvert for appellant in the first above-entitled action.
    I. The motion to dismiss the indictment at the close of the People’s case should have been granted. (People v. Lo Verde, 7 N Y 2d 114; People v. English, 16 N Y 2d 719; People v. Colon, 16 N Y 2d 988; People v. Mussenden, 308 N. Y. 558.) II. The trial court committed reversible error.
    
      Frank S. Hogan, District Attorney (Michael Juviler and H. Richard Uviller of counsel), for respondent in the first above-entitled action.
    I. Defendant’s guilt was proved beyond a reasonable doubt, there being no requirement of corroboration of complainant’s testimony as to assault in the third degree. (People v. Page, 162 N. Y. 272; People v. De Groat, 5 A D 2d 1045, 5 N Y 2d 947, 368 U. S. 863; People v. Chimino, 270 App. Div. 114, 296 N. Y. 554; People v. English, 16 N Y 2d 719; People v. Colon, 16 N Y 2d 988; People v. Weems, 17 N Y 2d 598; People v. Smith, 51 Misc 2d 866; People v. Debe, 24 A D 2d 868; People v. Lo Verde, 7 N Y 2d 114; People v. Swersky, 216 N. Y. 471.) II. The medical testimony as to complainant was admissible. (People v. Masse, 5 N Y 2d 217; People v. Butler, 55 App. Div. 361; People v. Tubbs, 240 App. Div. 915, 264 N. Y. 641.)
    
      Thomas J. Mackell, District Attorney (Jerrold I. Ehrlich of counsel), for appellant in the second above-entitled action.
    The indictment should not have been dismissed for lack of corroboration. (People v. English, 16 N Y 2d 719; People v. Colon, 16 N Y 2d 988; People v. Polite, 16 N Y 2d 1060; People v. Lo Verde, 7 N Y 2d 114; People v. Smith, 51 Misc 2d 866.)
    
      Robert N. Bressler and Frank L. Corrado for respondent in the second above-entitled action.
    I. The counts of assault in the second degree were properly dismissed for lack of corroboration. (People v. Page, 162 N. Y. 272; People v. Croes, 285 N. Y. 279; People v. English, 16 N Y 2d 719; People v. Colon, 16 N Y 2d 988; People v. Polite, 16 N Y 2d 1060; People v. Dixon, 25 A D 2d 858; People v. Lo Verde, 7 N Y 2d 114.) II. The third count of the indictment charging possession of a weapon with intent to use the same unlawfully against another, was properly dismissed by the court below.
    
      Frank A. Lopez and Theodore Rosenberg for appellant in the third above-entitled action.
    I. The guilt of appellant, Louis Roccaforte, was not proven beyond a reasonable doubt. (People v. Butts, 21 Misc 2d 799.) II. The evidence adduced at the trial solely demonstrated the consummated crime of rape in the first degree and therefore the assault in the third degree was improper. (People v. Lo Verde, 7 N Y 2d 114; People v. English, 16 N Y 2d 719; People v. Pender, 24 A D 2d 939; People v. Lennon, 27 A D 2d 730.)
    
      Thomas J. Mackell, District Attorney (Jerrold I. Ehrlich of counsel), for respondent in the third above-entitled action.
    I. The guilt of appellant was established beyond a reasonable doubt. (People v. Sanducci, 195 N. Y. 361; People v. Egnor, 175 N. Y. 419; People v. Rodawald, 177 N. Y. 408; People v. Atlas, 183 App. Div. 595, 230 N. Y. 629.) II. The assault charge was proper on the facts and was not barred by law (People v. English, 16 N Y 2d 719; People v. Colon, 16 N Y 2d 988; People v. Polite, 16 N Y 2d 1060; People v. Lo Verde, 7 N Y 2d 114; People v. Smith, 51 Misc 2d 866; People v. King, 26 A D 2d 832; People v. Curtis, 24 A D 2d 971; People v. Rea, 50 Misc 2d 721.)
   Van Voorhis, J.

Two of these three criminal prosecutions involve the crime of assault in the third degree. Radunovic and Roccaforte stand convicted of that crime and are appellants in this court. Sigismondi’s indictment was dismissed upon motion and the People appeal. He was indicted on two counts for assault in the second degree and upon a third count of possessing a dangerous weapon. In each instance the intermediate appellate court affirmed the disposition made by the trial court. Each concerns whether corroboration is required of the testimony of a female that there was a completed act of rape, in instances where the People have elected to prosecute on the basis of a crime ostensibly unrelated to a charge of rape or where the jury has found a defendant guilty of an unrelated crime upon evidence which, if believed, would render the accused guilty of rape or assault with attempt to commit rape. The Legislature has currently provided that corroboration of the testimony of complainant is required to sustain charges of adultery and incest (Penal Law, § 255.30), promoting prostitution (id., § 230.35) and of the sexual offenses punishable under article 130 of the Penal Law (§ 130.15) which include sexual misconduct (§ 130.20), rape (§§ 130.25, 130.30, 130.35), sodomy (§§ 130.40, 130.45, 130.50) and sexual abuse in the first and second degrees (§§ 130.60,130.65). This well-defined legislative policy has been extended by the courts to endangering the health and morals of a minor, assault with intent to commit rape and attempted rape where the charge is supported by evidence of a consummated rape (People v. Lo Verde, 7 N Y 2d 114; People v. English, 16 N Y 2d 719, and People v. Colon, 16 N Y 2d 988). Wigmore cites many instances to prove the needfulness of these rules (3 Wigmore, Evidence [3d ed.], § 924a). If this were not the rule, then it would be easy for a prosecutor or a Grand Jury to evade the requirement of corroboration by charging assault with intent to commit rape or third degree assault.

In each of these appeals there is no evidence of assault except the testimony of the woman as to a consummated rape.

Where the statutory requirement of corroboration applied under the former rape statute (former Penal Law, § 2013), the corroboration must extend to every material fact essential to constitute the crime (People v. Page, 162 N. Y. 272, 274-275; People v. Croes, 285 N. Y. 279). The bruise on the thigh of the complainant in the Radunovic case, and the fact that the woman had consulted her obstetrician, soon before the alleged assault, who had found her hymen intact and then consulted him afterward only to discover that it had been broken, do not constitute sufficient corroboration of her testimony that she was raped by that defendant. In the Roccaforte case there is even less evidence of corroboration. The indictment in the Sigismondi case which was dismissed on motion does not refer to rape but, as was said by Criminal Term (49 Misc 2d 1, 8), the ‘‘ ‘ rights of an accused may not be made to depend on the happenstance of draftsmanship ’ ”, citing People v. Mussenden (308 N. Y. 558, 561), and the testimony before the Grand Jury demonstrated that the only evidence of an assault which was before the 'Grand Jury consisted of testimony of the complaining witness that she had been raped and that the knife was only dangerous as a threat to cause her to submit to the rape to which she testified.

The judgment appealed from in the Radunovic case should be reversed and the indictment dismissed.

The order in the Sigismondi case should be affirmed.

The judgment in the Roccaforte case should be reversed and the information dismissed.

Burke, J. (concurring).

I concur in the result reached by the majority for the reasons stated so well by Mr. Justice Steuer in his dissenting opinion in People v. Radunovic (27 A D 2d 917), and with the same reservations.

Breitel, J. (concurring).

I agree with the opinion by Judge Van Voorhis. I also agree that cases arising out of a sexual transaction or context involve a special peril of unreliable testimony on the part of the complainant, whether child or adult, male or female. The anomaly created by the applicable statutory rules is that if the assaultive offense does not culminate in a defined sexual transaction, corroboration is not required to establish the crime, although the peril of falsehood is just as great, if not greater (see People v. Colon, 16 N Y 2d 988). This is just as repellent to any sense of logic or justice as the device of prosecuting and convicting for the assaultive offense by suppressing the allegations or the proof of the culminated offense in order to avoid the requirement of corroboration. It makes no more sense to acquit a defendant who raped without an eyewitness and hold in one who attempted to rape without an eyewitness.

There is a serious difficulty in this area of criminal law. It is an immature jurisprudence that places reliance on corroboration, however unreliable the corroboration itself is, and rejects overwhelming reliable proof because it lacks corroboration, however slight and however technical even to the point of token satisfaction of the rule. Quite often the corroboration supplied under the various rules in criminal law, and particularly in the sex cases, is weak indeed and supplies only a formalistic bridge over a very real and profound discomfort in such cases because of the many motivational or quasi-pathologieal reasons for distortion of the facts.

Indeed, Wigmore questioned the rationality of the corroboration requirement. Thus he said:

a rule of law requiring corroboration has probably little actual influence upon the jurors’ minds over and above that ordinary caution and suspicion which would naturally suggest itself for such charges; and the rule thus tends to become in practice merely a means of securing from the trial judge the utterance of a form of words which may chance to be erroneous and to lay the foundation for a new trial. Finally, the purpose of the rule is already completely attained by the judge’s power to set aside a verdict upon insufficient evidence, and under this power verdicts are constantly set aside, in jurisdictions having no statutory rule, upon the same evidence which in other jurisdictions would be insufficient under the statutory rule requiring corroboration.
The fact is that, in the light of modern psychology, this technical rule of corroboration seems but a crude and childish measure, if it be relied upon as an adequate means for determining the credibility of the complaining witness in such charges. The problem of estimating the veracity of feminine testimony in complaints against masculine offenders is baffling enough to the experienced psychologist. This statutory rule is unfortunate in that it tends to produce reliance upon a rule of thumb.” (7 Wigmore, Evidence [3d ed.], § 2061, pp. 354-355.)

The Radunovic case in this group before the court is a prime example. The evidence of the People was all but overwhelming, but lacked technical corroboration. Defendant’s testimony supported much of complainant’s version. He admitted presence and sexual byplay. His denial of intercourse was on the whole record utterly incredible. Nevertheless, testimony of a victim of unquestioned professional standing bearing bruises on her thighs from defendant’s assaults, and bruises on her elbows when she fell to the floor in her struggle, confirmed by medical testimony as to her virginal status before the assault, must be rejected for lack of corroboration, anyone’s corroboration. At the same time, defendant admits all but the use of force, and the consummation of his wishes. Yet he told the police officer on arrest that the trouble arose from the demand by this school teacher victim that she be paid $15 for her favors, and that he had then kicked her out. It is difficult for a layman to understand such a result and it is just about as difficult for a lawyer.

A better principle, if the anomalous statutes did not control, would be that which obtains in many other areas of law where serious charges or claims can be made freely, the motivation for falsehood or occasion for inaccuracy is very great, and the disproof difficult. That principle, variously phrased, requires especially convincing and satisfying evidence, within the rubrics of proof beyond a reasonable doubt and the preponderance of evidence, to establish the operative facts in cases involving, for example, fraud, prostitutes, alleged gifts from the now-dead, alleged gifts between those in confidential relations, illegitimacy of birth, and filiation or bastardy .support.

But in the meantime, there is an obligation to obey the statutes although they produce injustice because very uneven justice is that, and rely on a primitive and unsuccessful effort to obtain greater certainty in difficult cases.

Scileppi, J. (dissenting).

The result reached by the majority, under the authority of People v. English (16 N Y 2d 719) and its progeny, is truly strange and astounding and carries extremely mischievous if not dangerous consequences. Some members of this court who questioned the soundness of the English decision feared the consequences of its application to future cases. By extending the English rule to the eases at bar, its unsoundness has been highlighted and those fears have been justified. The majority is now holding that in non-sex crimes, such as possession of a dangerous weapon connected with an alleged rape (People v. Sigismondi), it is necessary to prove corroboration. In other words, it is now necessary to prove a rape case in order to convict for assault with a dangerous weapon or to convict for simple assault (involved in the other cases before us), committed on a female who has been defiled. Common sense and practical judicial interpretation of both English and section 2013 of the former Penal Law dictate that the necessity for corroboration be restricted only to the elements of the sexual crime for which a conviction is sought. Neither English nor section 2013 of the former Penal Law nor section 130.15 of the new Penal Law mandates that, in an assault case where a rape is also committed, the necessary corroboration must be broad enough to sustain a conviction for rape. This, in my opinion, is a license to commit rape, for one who makes a sexual attack on a woman can be convicted without corroboration if he falls short of satisfying his lust, but not if he succeeds. The effect of the majority decision makes eyewitnesses or a confession indispensable in such assault cases, notwithstanding that the indictment or information charges a defendant with a non-sex crime. It is common knowledge that sex crimes are hardly ever committed in the presence of others. Thus, many a rapist escapes the penalty of the law for lack of corroboration. It may be that, as a matter of public policy, the requirement of corroboration in rape cases is a necessary protection against unfounded accusations. However, to extend the rule laid down in English to the cases under review can only tend to aggravate the incidence of attacks on women which is steadily increasing. This is an intolerable situation. One need only refer to our news media to find that this is true. The decent law-abiding citizen is no longer safe in his home or on the streets. Indeed, a recent F.B.I. report shows a national increase in crime of 17% thus far in 1967 over 1966.

I cannot agree with the growing judicial attitude which continually unduly favors the criminal defendant at the expense of the rest of society. This is wrong, and our courts must become conscious of the need for the protection of society as well as of those charged with crime.

I feel no compelling reason, therefore, to extend a rule of law which results in sex offenders’ escaping completely the penalty of the law. This is unrealistic and unsound. Bather, I find a pressing need for overruling People v. English (supra), or at least for a limitation of its application to cases charging the commission of a sex crime for which a conviction is sought. Moreover, I do not believe that the doctrine of stare decisis requires that we blindly follow our prior decision in English, when to do so leads to the absurd and dangerous results reached in cases before us today.

The judgment of conviction in People v. Radunovic and in People v. Roccaforte should be affirmed, and the order in People v. Sigismondi should be reversed and the indictment reinstated.

Bergan, J. (dissenting).

The full extension of the corroborative requirements for rape, which have good enough grounds in human experience, to most assaults on women is both unnecessary and unwise. Rape is often impossible to corroborate by objective physical evidence, but an assault leaving injuries tends to its own corroboration. In Radunovic, for example, there is adequate objective proof of physical injury. Roccaforte presents, merely, an issue of credibility as to the assault in which the assaulted person was believed; Sigismondi, had the charge not been dismissed, would have presented a similar problem. If a man had been assaulted this would be sufficient; it ought to be sufficient, too, if a woman is assaulted.

The judgments in Radunovic and Roccaforte should be affirmed and the order in Sigismondi reversed.

In People v. Radunovic: Opinion by Judge Van Voorhis in which Chief Judge Fuld and Judge Breitel concur, Judge Breitel in a separate concurring opinion; Judge Burke concurs for reversal for the reasons stated by Mr. Justice Steuer in his dissenting opinion at the Appellate Division and with the same reservations; Judge Scileppi dissents and votes to affirm in an opinion and Judge Bergan dissents and votes to affirm in a separate opinion in which Judge Keating concurs.

Judgment reversed, etc.

In People v. Sigismondi: Opinion by Judge Van Voorhis in which Chief Judge Fuld and Judge Breitel concur, Judge Breitel in a separate concurring opinion; Judge Burke concurs for affirmance for the reasons stated by Mr. Justice Steuer in his dissenting opinion in People v. Radunovic (27 A D 2d 918) and with the same reservations; Judge Scileppi dissents and votes to reverse and reinstate the indictment in an opinion and Judge Bergan dissents and votes to reverse in a separate opinion in which Judge Keating concurs.

Order affirmed.

In People v. Roccaforte: Opinion by Judge Van Voorhis in which Chief Judge Fuld and Judge Breitel concur, Judge Breitel in a separate concurring opinion; Judge Burke concurs for reversal for the reasons stated by Mr. Justice Steuer in his dissenting opinion in People v. Radunovic (27 A D 2d 918) and with the same reservations; Judge Scileppi dissents and votes to affirm in an opinion and Judge Bergan dissents and votes to affirm in a separate opinion in which Judge Keating concurs.

Judgment reversed, etc.  