
    [609 NYS2d 954]
    The People of the State of New York, Respondent, v Jamie R. Naylor, Appellant.
    Third Department,
    April 7, 1994
    
      APPEARANCES OF COUNSEL
    
      Michael P. Graven, Owego, for appellant.
    
      Robert J. Simpson, District Attorney of Tioga County, Ow-ego, for respondent.
   OPINION OF THE COURT

Yesawich Jr., J.

Defendant’s indictment stems from an incident in which he broke into his estranged wife’s apartment, while she was sleeping, and proceeded to fondle her breasts and genitals. On appeal, defendant contends that his conviction for sexual abuse in the third degree was improper because the victim and defendant were married and not legally separated at the time of the occurrence (see, Penal Law § 130.00 [4]). Inasmuch as defendant was convicted of sexual abuse in the third degree, for which forcible compulsion need not be proven (see, Penal Law § 130.05 [1], [2] [c]; § 130.55)—notably, here, the jury was specifically instructed, at the People’s request, that if the victim had "not expressly or impliedly acquiesc[ed] in the defendant’s conduct”, a guilty verdict could be returned—it is necessary to determine whether the "marital exemption” for sex crimes applies. That exemption has already been declared unconstitutional when offenses in which forcible compulsion (e.g., rape, sodomy) is an element are implicated (see, People v Liberta, 64 NY2d 152, 163-167, cert denied 471 US 1020; People v Horvath, 183 AD2d 915, 916, lv denied 80 NY2d 832). At issue is whether the marital exemption is also inapplicable to a crime which does not have force as a predicate, but is based upon lack of consent alone. We find that it is inapplicable, at least under the circumstances herein.

The Court of Appeals anchored its holding in People v Liberta (supra, at 164) on, inter alia, a finding that it was "irrational and absurd” to imply consent to a violent, degrading act such as forcible rape; likewise, where, as here, the parties have taken up separate residences, have both become involved in new intimate relationships, and have taken steps toward dissolving their marriage, it is unreasonable if not fatuous to assume that the existence of what in reality is a wholly Active marriage relationship furnishes a sufficient basis from which consent to unsolicited sexual touching may be implied. As the Court of Appeals noted in Liberta, "[a] married woman has the same right to control her own body as does an unmarried woman” (supra, at 164). Given the analysis and direction of the Liberta decision, recognizing that any person, married or not, has the right to refuse forcibly compelled sexual intercourse, logical interpretation of that right necessarily encompasses an estranged partner’s right to be free from unwanted sexual touching, for the concerns which motivated the Court of Appeals to strike down the marital exemption in rape cases (see, supra, at 164-167) are equally present in such circumstances. There being no rational basis for exempting from criminal liability acts which would otherwise constitute sexual abuse in the third degree, solely on the grounds that the perpetrator and victim are technically legally married, defendant’s conviction was not improper.

Notwithstanding defendant’s contrary view, we do not find County Court’s Sandoval ruling, that defendant’s prior convictions for grand larceny, burglary and rape could be used to impeach his testimony should he choose to take the stand, erroneous. Neither the fact that the convictions for burglary and rape involved similar crimes to those charged herein, nor the fact that those convictions were over 10 years old—one was in 1977, the other in 1980—compels a different result (see, People v Foster, 156 AD2d 252, 252-253, lv denied 75 NY2d 868; People v Weeks, 126 AD2d 857, 860; People v Scott, 118 AD2d 881, lv denied 67 NY2d 1056). Defendant’s prior convictions demonstrated a willingness to place his own interests ahead of those of society (see, People v Bennette, 56 NY2d 142, 148), and defendant did not establish that undue prejudice would result if they were disclosed (see, People v Sandoval, 34 NY2d 371, 378).

Lastly, we are of the view that the victim’s testimony of prior physical abuse by defendant was probative of her state of mind, and thus was relevant to the issue of consent (cf., People v Velasquez, 141 AD2d 882, 883, lv denied 72 NY2d 926; People v Barlow, 88 AD2d 668, 669). Furthermore, it also provided an explanation for her failure to immediately report the incident to the police, a matter raised by the defense in an attempt to undermine her credibility.

Mikoll, J. P., Crew III, White and Peters, JJ., concur.

Ordered that the judgment is affirmed. 
      
       Testimony established that they had been living apart for several years and had previously attempted to obtain a divorce, but were unable to do so because of lack of funds.
     