
    The People of the State of New York, Respondent, v. Israel Moore, Appellant.
    Argued December 11, 1968;
    decided January 23, 1969.
    
      
      Stephen P. Sidel and Anthony F. Marra for appellant.
    I. Because appellant’s convictions for larceny and robbery were based upon evidence of an uncorroborated rape, a new trial is required. (People v. Radunovic, 21 N Y 2d 186; People v. Sigismondi, 21 N Y 2d 186; People v. Roccaforte, 21 N Y 2d 186; People v. Lennon, 22 N Y 2d 677; People v. Jenkins, 22 N Y 2d 675; People v. McCullough, 28 A D 2d 709.) II. No conviction of robbery or larceny can stand where lack of proof of the essential element of intent exists. (Atkins & His Five Sons v. Massachusetts Bonding & Ins. Co., 205 Misc. 676, 207 Misc. 58; People v. Koerber, 244 N. Y. 147; United States v. Nedley, 255 F. 2d 350; People v. Frank, 176 Misc. 416; People v. Mills, 178 N. Y. 274; Justices of Ct. of Special Sessions of N. Y. County v. People ex rel. Henderson, 90 N. Y. 12; Wolf stein v. People, 6 Hun 121; People v. Kirkup, 4 N Y 2d 209.) III. The lower court erred in failing to instruct the jury on the , element of intent. (People v. Singleton, 21 A D 2d 907; People v. Best, 253 App. Div. 491; People v. Levan, 295 N. Y. 26.) IV. Since defendant-appellant was not aided by the use of an automobile, there could not have been first degree robbery under section 2124 of the former Penal Law. (People v. Rudelt, 6 A D 2d 640; People v. King, 13 A D 2d 264.)
    
      Elliott Golden, Acting District Attorney (Stanley M. Meyer of counsel), for respondent.
    I. The robbery and larceny counts are also sufficiently supported by the evidence below. (Hope v. People, 83 N. Y. 418; People v. Morrison, 194 N. Y. 175; People v. Ashworth, 220 App. Div. 498; People v. Malatek, 
      2 A D 2d 683; Justices of Ct. of Special Sessions of N. Y. County v. People ex rel. Henderson, 90 N. Y. 12; Wolfstein v. People, 6 Hun 121; People v. Kirkup, 4 N Y 2d 209; People v. Fruci, 188 Misc. 384; People v. King, 13 A D 2d 264.) II. This court should clarify the type of corroboration that will be necessary to sustain .convictions for crimes lower than rape where a completed act is testified to. (People v. Dixon, 25 A D 2d 858; People v. Debe, 24 A D 2d 868; People v. Pender, 24 A D 2d 939; People v. King, 26 A D 2d 832; People v. English, 16 N Y 2d 719.)
   Bergan, J.

If the development of the rule extending the requirement for corroboration in cases of rape to other crimes be followed closely, it will be seen the extension has been directed in each case to crimes intrinsically related to rape or committed in aid of effecting rape.

Robbery is not such a crime. It is in legal theory and in fact unrelated to rape; and if a woman is robbed while she is also raped, a testimonial disability ought not be added to a physical indignity.

If a man is robbed, his testimony is good enough if it is believed; there is no juridically sound reason why a woman who is robbed must bring to court additional credentials of credibility.

In this present case the jury could find the defendant deliberately took property in consequence of force and fear from the person of the complainant while in the act of raping her. The larceny charge, resulting from the robbery, is in the same situation. Unlike the crime of assault, which to greater or lesser degree is a part of every forcible rape, there is no necessary interdependence between these two entirely distinct crimes (People v. Florio, 301 N. Y. 46). The decision in People v. Levy (15 N Y 2d 159) does not affect this aspect of the Florio decision.

Decisions beginning with People v. Lo Verde (7 N Y 2d 114) which have extended the need for corroboration for crimes other than rape itself will be seen on analysis to be either sexual offenses, as in Lo Verde itself (endangering the health or morals of complainant), or assaults designed to help commit the rape (People v. English, 16 N Y 2d 719).

In People v. Radunovic (21 N Y 2d 186) and cases decided with it, assault charges were based on acts each interdependent upon the rape itself. Whatever rationality there may be in extending the need for corroboration for such assaults, it does not extend to the quite different crime of robbery unless we are willing to place women as witnesses in an unjustifiable position of disadvantage.

The case now here is quite similar in legal principle to People v. Lennon (22 N Y 2d 677). There, the same uncorroborated testimony of the woman which showed a rape also showed a robbery and conviction for that crime was upheld although the additional charge of assault was dismissed. The decision in People v. Jenkins (22 N Y 2d 675) was based on a similar record.

The distinction urged here, that need for corroboration be made to depend on whether the robbery comes before or after the rape or during its commission, suggests differentials too tenuous to be applied pragmatically in actual prosecutions in the criminal courts.

The judgment should be affirmed.

Chief Judge Fuld (dissenting).

The victim testified that the alleged theft (of which the defendant was convicted) was committed while he was actually raping her and, accordingly, her testimony required corroboration. (See, e.g., People v. Young, 22 N Y 2d 785, 786; People v. Radunovic, 21 N Y 2d 186.) Since, concededly, no such corroborative evidence was adduced, the convictions for robbery and larceny should be reversed and a new trial ordered on the entire indictment.

Breitel, J. (dissenting).

The present decision marks another fluctuation among the unpatterned rulings in sex cases caused by the unsatisfactory corroboration rule (see concurring opn. in People v. Radunovic, 21 N Y 2d 186, 190-192). It does not contribute to a rule of law, but only exemplifies the understandable resistance to a rule that does not lend itself to rational application to the complex variations of facts which arise.

Complainant’s testimony that defendant had removed a change purse from her person while he was raping her was the only evidence to support the larceny and robbery charges. This testimony was inseparable, by reason of the unity of time, place, and circumstances, from that which would also render the accused guilty of rape. Nor was there proof of the elements embraced in the other or lesser crimes charged other than the testimony which required corroboration. Hence, the lack of corroboration requires reversal of the robbery and larceny convictions (compare People v. Radunovic, supra, with People v. Lennon, 22 N Y 2d 677, and People v. Jenkins, 22 N Y 2d 675). Thus, in the Lennon ease it was said (p. 678): “ The testimony of the complaining witness as to the consummated rape, though relevant, was not a necessary element to support the defendant’s conviction on the charge of robbery in the first degree. The requirement of corroboration, under section 201.3 of the former Penal Law, extends only to those charges which are based solely upon evidence which, if believed, would render the accused guilty of the crime of rape.”

Accordingly, I dissent and vote to modify and remand the action for a new trial.

Judges Burke, Scileppi, Keating and Jasen concur with Judge Bergan ; Chief Judge Fuld dissents and votes to modify in a memorandum; Judge Breitel dissents and votes to modify in an opinion.

Judgment affirmed.  