
    The People of the State of New York, Respondent, v. Enrico Porcaro, Appellant.
    Argued January 23, 1959;
    decided July 8, 1959.
    
      Herbert S. Siegal for appellant.
    I. The order of the trial court refusing to direct a physical examination by a physician of the prosecutrix under the circumstances was error and constituted an arbitrary abuse of discretion. (People v. Thompson, 212 N. Y. 249; McGuff v. State, 88 Ala. 147; McQuigan v. Delaware, L. & W. R. R. Co., 129 N. Y. 50; Goldsmith v. Goldsmith, 279 App. Div. 579; Trovato v. Trovato, 262 App. Div. 276.) II. The suppression of evidence in the hands of the prosecutor inconsistent with the sworn testimony of the prosecutrix was tantamount to a fraud upon the court and jury, and constituted reversible error. (Berger v. United States, 295 U. S. 78; Matter of Lyons v. Goldstein, 290 U. Y. 19; Matter of Morhous v. Supreme Court, 293 N. Y. 131; United States v. Reynolds, 345 U. S. 1; Matter of Dreiband, 273 App. Div. 413; People v. Riley, 191 Misc. 888; People v. Fielding, 158 N. Y. 542.) III. The complaining witness, an accomplice under the law, must be corroborated by such other evidence as tends to connect defendant with the commission of the crime charged, and, in the absence thereof, the judgment of conviction herein may not be upheld. (People v. Gibson, 301 N. Y. 244.) IV. The judgment of conviction herein obtained by proof of other crimes dehors the indictment constituted reversible error. (People v. Molineux, 168 N. Y. 264; People v. Thompson, 212 N. Y. 249.)
    
      Daniel V. Sullivan, District Attorney (Irving Anolik of counsel), for respondent.
    I. The instant appeal brings up for review questions of law only. The sworn testimony of Linda Maria Caradonna, which required no corroboration, was sufficient in law to establish guilt beyond a reasonable doubt. (People v. Howell, 3 A D 2d 153, 3 N Y 2d 672; People v. Peary, 249 App. Div. 851; People v. Johnson, 185 N. Y. 219; People v. Linzey, 79 Hun 23; People v. Sanducci, 195 N. Y. 361; People v. Lytton, 257 N. Y. 310; People v. McCallam, 103 N. Y. 587; People v. Sutherland, 154 N. Y. 345; People v. Walker, 198 N. Y. 329.) II. The testimony of the child complainant as to other similar sexual abuses committed upon her person by defendant, indicated a continuing course of depraved conduct on Porcaro’s part and negatived the possibility of mistake on the victim’s part. Such evidence did not necessarily constitute proof of “ other crimes ” since the incidents involved only defendant and the complainant. (People v. Thompson, 212 N. Y. 249; People v. Molineux, 168 N. Y. 264; People v. Swift, 172 Mich. 473; Whiteman v. State, 119 Ohio St. 285; Boyd v. State, 81 Ohio St. 239; People v. Anderson, 375 Ill. 163; State v. Girone, 91 N. J. L. 498; State v. Sebastian, 81 Conn. 1; State v. Schueller, 120 Minn. 26.) III. The court did not err in denying defendant’s motion to have Linda Maria Caradonna examined by a physician. (McGuff v. State, 88 Ala. 147; State v. Hilton, 119 Ore. 441.) IV. Defendant received a fair trial and no evidence was suppressed by the People or the court. V. The jury was properly instructed on the law. In any event, defendant took no exceptions to the charge and his only request was substantially granted. Linda Maria Caradonna was not an accomplice. (People v. Seidenshner, 210 N. Y. 341; People v. Lee, 300 N. Y. 422; People v. Johnson, 185 N. Y. 219; People v. Gibson, 232 N. Y. 458; People v. DeAngelis, 262 App. Div. 970, 288 N. Y. 630.)
   Vaf Vooehis, J.

Appellant was indicted for first degree sodomy, second degree assault and impairing the morals of a minor in violation of subdivision 2 of section 483 of the Penal Law. These charges arose out of one incident alleged to have occurred on January 1, 1957. The jury acquitted appellant of the first two charges but found him guilty of the last charge, which is a misdemeanor. As in the case of People v. Oyola (6 N Y 2d 259), decided simultaneously, the evidence against appellant consisted entirely of testimony by a 10-year-old child, who in this instance testified to having regular and frequent sexual intercourse with appellant (her stepfather) during four years, in the usual manner as well as through her mouth. Appellant denied this testimony completely. Ho circumstantial evidence attests its veracity. Although, according to complainant’s version, this course of conduct began when she was 6 years old and continued until she was 10, this child named Linda said that she did not tell her mother anything about it until January 27, 1957. Then she said that she told the whole story.

Here, as in Oyóla, a matrimonial dispute is in the background. Linda is Ida’s child by a previous marriage. In 1950 Ida and appellant, while each was married to another, left Hew York City taking Linda with them to Florida, where they lived in the same room until Ida and appellant obtained divorces from their respective spouses and were married. In 1951 the couple returned to Hew York City as man and wife. In January, 1957, when Linda testified that she first informed her mother of her lurid past, appellant’s former wife Elizabeth was arranging to take him back. When his former wife was reminded upon the witness stand that he was no longer her husband, she answered: “Ho, he is not my husband yet.” When Ida Porcaro was questioned upon the same topic, she testified:

“ Q. Do you know today, madam, whether or not he is back with his first wife and three children? A. I take it for granted he is, sir.”

Although Ida denied telling appellant that she would see him rot in jail before rejoining his first wife, a remark ascribed to her elsewhere in the testimony, this pivotal event occurred precisely when the child is supposed to have unfolded this long, sordid story of her personal life. In fact Linda testified that she told her mother that she had sexual intercourse with her stepfather through her genitals again on that very day.

Two days after this conversation and on January 29, 1957 (the day on which appellant was arrested) the mother took this child to a doctor for physical examination, but the doctor’s findings were not disclosed. Timely and repeated demands by appellant were refused for a physical examination of the child. When on the trial appellant’s counsel called upon the prosecution to stipulate that Linda was examined at her mother’s instance by a doctor on January 27th, 28th or 29th, 1957 and found to be virginal, the Assistant District Attorney refused to concede this “ on the ground it is immaterial.” The theory on which it was claimed to be immaterial is that penetration is not an element of oral sodomy, second degree assault, or impairing morals for which appellant was indicted. This reasoning misses the point that penetration would have occurred if the morals of this child had been impaired in the manner to which she testified. In answer to questions by the Assistant District Attorney, she testified that during four years appellant repeatedly inserted his sexual organ into her private parts, the last occasion on January 27, 1957. The prosecution depended entirely upon the truth of the narrative of this child. If a physical examination of the child had revealed a broken hymen, appellant would not necessarily have been implicated. Upon the other hand, if her hymen were found to have been intact, the child’s entire testimony would have been discredited. Whatever may be the rule regarding physical examinations under other circumstances, common fairness requires that a defendant in a criminal action shall be allowed to have a physical examination in order to learn whether a complaining witness is in a condition in which she would be likely to have been if her testimony were true, provided that the testimony is material as this was.

Although this child was sworn, so that the express statutory requirement of section 392 of the Code of Criminal Procedure does not apply, the evidence against appellant in this record is not of the clear and convincing kind which is necessary in order to sustain a conviction of this type (People v. Meyers, 309 N. Y. 837; People v. Dutton, 305 N. Y. 632; People v. Rosen, 293 N. Y. 683; People v. Derner, 288 N. Y. 599; People v. Slaughter, 278 N. Y. 479; People v. churgin, 261 N. Y. 661).

For the reasons stated in People v. Oyola (6 N Y 2d 259, supra), the judgment of conviction should be reversed and the indictment dismissed.

Fttld, J. (concurring).

I agree with Judge Vah Voobhis for reversal both in this case and in People v. Oyóla (6 N Y 2d 259), but I would place my decision upon the ground that, as matter of law, no conviction for impairing the morals of a child may validly rest on the uncorroborated testimony of the child victim. Indeed, I have long believed that such was the law. (See, e.g., People v. Meyers, 309 N. Y. 837; People v. Rosen, 293 N. Y. 683; People v. Derner, 288 N. Y. 599; People v. Slaughter, 278 N. Y. 479; People v. Churgin, 261 N. Y. 661.) The need for such a rule is obvious for, as Wigmore has observed, 111 The most dangerous witnesses in prosecutions for morality offences are the youthful ones (often mere children) in whom the sex-instinct holds the foremost place in their thoughts and feelings. * * * It is just such witnesses that often bring into their picture individuals who have never been near them and that throw suspicion recklessly on the most worthy persons.’” (3 Wig-more, Evidence [3d ed., 1940], p. 463.) Anyone who has had experience in prosecuting this type of case can document this observation with graphic illustrations.

The Legislature has expressly provided that no person may be convicted of a crime upon the unsworn testimony of a child under 12 “ unsupported ” by other evidence (Code Crim. Pro., § 392), but such a restriction does not, indeed cannot, preclude the court from making corollary provisions to safeguard the accused where judicial experience indicates the necessity. In this connection, it is noteworthy that no morals conviction based solely on the unsupported testimony of a child, sworn or unsworn, has ever survived in this court. (See People v. Meyers, 309 N. Y. 837, supra, and other cases cited above.) I would make explicit the rule of law implicit in these decisions.

Burke, J. (dissenting).

This court lacks the power to reverse the judgment of conviction on the ground that the sworn testimony of the child witness is uncorroborated.

At common law, the testimony of a female victim in any case of sexual offense was not required to be corroborated. Such testimony alone was sufficient to support a conviction (7 Wig-more, Evidence [3d ed.], § 2061). The requirement of corroboration, that is the necessity to produce independent evidence supporting the testimony of the injured female, is of statutory origin. Thus corroboration is required by statute in cases of abduction (Penal Law, § 71), adultery (id., § 103), compulsory prostitution of a wife (id., § 1091), compulsory marriage (id., § 1455), rape (id., § 2013), seduction (id., § 2177), and compulsory prostitution (id., § 2460). Moreover, the unsworn testimony of a child under 12 years -of age (Code Crim. Pro., § 392) and also the testimony of an accomplice (Code Crim. Pro., § 399) must be corroborated.

Neither the Code of Criminal Procedure nor the Penal Law require corroborative evidence of a complainant’s testimony to support a conviction for crimes against nature, incest or impairing the morals of a minor. While charges of this nature are easily lodged and men may be maligned, it is also true that these acts usually are performed in secret and far from the view of witnesses.

Professor Wigmore, in his excellent treatise on the law of evidence, makes a plea for the use of psychiatric testimony in connection with the mental state of female complainants in certain sexual cases, viz., rape, rape under age, seduction and assault. However, this is merely a plea for a change in the law and does not deal with crimes against nature, incest or impairing the morals of a minor. In the 1937-1938 Report of the American Bar Association’s Committee on the Improvement of the Law of Evidence, the committee recommended that: ‘ ‘ in all charges of sex offenses, the complaining witness be required to be examined before trial by competent psychiatrists for the purpose of ascertaining her probable credibility, the report to be presented in evidence.” The report of the psychiatrists would only be additional testimony on the credibility of a complainant and, like all opinion evidence, could either be accepted or rejected by a jury or the trier of the facts.

Hence the requirement of corroboration or other additional testimony, whether it be desirable or not, must be left to the Legislature which has not as yet seen fit to require such additional proof in these matters.

Section 392 of the Code of Criminal Procedure provides that testimony similar to that given by the complainant here should not be discredited solely because of age. A child under 12 is merely presumed to be incompetent to be sworn as a witness in a criminal case (the evidence may still be received nevertheless on certain conditions) but this presumption is overcome by a proper preliminary examination after which a child may be sworn (People v. Klein, 266 N. Y. 188). There is no rule in the common law which defines any particular age as conclusive of incapacity and in each instance capacity is to be investigated. (6 Wigmore, op. cit., § 1821.)

In Wheeler v. United States (159 U. S. 523) a boy five years old was not as a matter of law absolutely disqualified as a competent witness in a murder trial. There the disclosures of the child on his voir dire were sufficient to authorize the reception of his testimony as a witness. Mr. Justice Brewer, writing for the court (pp. 524-525), stated: “ [T]here is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question ■rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as his understanding of the obligations of an oath.”

In People v. Johnson (185 N. Y. 219), also involving a murder conviction, Judge Vaste- wrote concerning the unsworn testimony of a child under 12 (p. 231): “ A child may not be able to understand the nature of an oath and yet be capable of telling what he. saw and heard on a certain occasion with entire accuracy. It was to meet such a situation that the statute was passed [Code Grim. Pro., § 392], not to aid the prosecution only, but to aid the accused as well. The old saying that ‘ fools and children always tell the truth ’ rests on the common observation of mankind that while such persons can tell what they saw and heard, they cannot invent a story and stick to it when closely questioned. Of course there are exceptions to that rule, but the persons coming within it would know enough to understand the nature of the oath, if it was explained to them, and could tell the same story whether sworn or not. ” (Emphasis added.)

The voir dire administered here offers strong support to the decision of the trial court to exercise its discretion in favor of the complainant as a witness and permitting her to be sworn. Her testimony, therefore, must be considered in the same light as that of any other sworn witness in a criminal trial (see People v. Washor, 196 N. Y. 104, 109-110; People v. Linzey, 79 Hun 23; People v. O’Brien, 74 Hun 264).

Where convictions of impairing the morals of children, carnal abuse and third degree assault, depending solely on the testimony of minors, have been reversed by this court (People v. Derner, 288 N. Y. 599; People v. Slaughter, 278 N. Y. 479; People v. Churgin, 261 N. Y. 661; People v. Rosen, 293 N. Y. 683; People v. Meyers, 309 N. Y. 837), the ground for reversal was: “ there is not sufficient evidence to find the defendant guilty beyond a reasonable doubt.”

The cases of People v. Klein (266 N. Y. 188), People v. Churgin (supra), People v. Dutton (305 N. Y. 632) and People v. Meeks (283 N. Y. 694) were all decided properly within the mandate of section 392 of the Code of Criminal Procedure, there being no corroborative evidence for the unsworn testimony of witnesses under 12 or, where sworn, no proper preliminary examination was given. The decisions in People v. Derner (supra), People v. Slaughter (supra) and People v. Meyers (supra), where the witnesses were properly sworn, were based solely on the lack of any convincing testimony that should persuade a jury beyond a reasonable doubt.

As we view the record and testimony here, it presents two sharp questions of credibility: (1) an accusation and a denial, and (2) a question of whether the whole matter was one of complete fabrication invented by the child’s mother.

In this case we do not have the vague, indefinite testimony of a child witness who could not testify even to the date of the alleged act by the defendant, a person of previous good reputation (People v. Meyers, supra); or vague and indecisive testimony concerning one isolated incident with a defendant of previous good standing (People v. Rosen, 293 N. Y. 683, supra); or evidence of a fleeting and momentary meeting by a boy of 15 with a defendant of previous good character (People v. Slaughter, supra); or one casual meeting with a defendant (People v. Denner, supra).

The sordid acts which the child asserted were committed upon her person were unquestionably of such a nature to be within the provisions of subdivision 2 of section 483 of the Penal Law and justify a conviction for such, if believed. The defendant, understandably, denied these charges. However, this only creates an issue of credibility. The fact that her testimony Avould also uphold a conviction for sodomy and assault, of which the defendant was acquitted, does not give rise to any inconsistency (cf. People v. Link, 3 N Y 2d 947).

The record contains definite and clear testimony both as to the date and the acts of the defendant on that date and other occasions. The testimony is strong. It was unshaken by an extensive and competent cross-examination. On the other hand, the defendant, who had abandoned his first wife and their children and was an admitted adulterer, merely denied the accusation. Such testimony presented a sharp question of credibility to the jury.

It has always been clear that in noncapital felony cases this court lacks the power to review facts. As this court stated in People v. Lobel (298 N. Y. 243, 251): “ Insofar as our disposition of this noncapital case is concerned — where the weight of evidence is not a subject for our review—it is basic that where there are conflicting inferences from proven facts the verdict of a jury is not to be set aside, in the absence of material error, unless it can be said as a matter of law that there is no evidence to support it. (People v. Sugarman, 248 N. Y. 255, 258; People v. McCarthy, 250 N. Y. 358, 364; People v. Pesky, 254 N. Y. 373.) ” (See, also, Cohen and Karger, Powers of the New York Court of Appeals, § 198, p. 742.)

Therefore, we cannot reverse without breaking doAvn the bounds that separate the fields of action of the jury and of the Appellate Division from the province of reAdew of the Court of Appeals. Hence we think the verdict is supported by evidence sufficient to convict the defendant beyond a reasonable doubt.

The jury has accepted the testimony of the People. Their judgment has been unanimously affirmed by the Appellate Division. The verdict, under such circumstances, is conclusive upon this court.

In People v. Sutherland (154 N. Y. 345, 350) this court wrote: “It is undoubtedly true that this court has power in a capital case to review the facts and set aside a verdict of conviction when not supported by sufficient evidence, or when it appears that injustice has been done. But where there is a conflict in the evidence, or where opposing inferences are to be dra/wn from the facts, it is the province of the jury to determine where the truth is, and the verdict, under such circumstances, is conclusive upon the courts ”. (Emphasis added.)

Defendant argues that the trial court erred in refusing to order , a physical examination of the child. There is, however, no statute and no case in this State which authorizes a physical examination of a complainant in a criminal ease involving a sexual offense. Assuming, however, that this practice is permissible in the absence of any direct authorization therefor, the granting of such a motion would rest in the sound discretion of the court (see, e.g., McGuff v. State, 88 Ala. 147; King v. State, 100 Ala. 85; McArthur v. State, 59 Ark. 431, 436; State v. Pucca, 4 Pennewill [Del.] 71; Thomas v. Commonwealth, 188 Ky. 509; Walker v. State, 12 Okla. Cr. 179; State v. Driver, 88 W. Va. 479).

Assuming arguendo that the trial court had the power to order a physical examination of this child, we do not believe that the denial constituted an abuse of discretion. The crimes charged were oral sodomy, assault, second degree, and endangering morals. We fail to see how the testimony of this child could be seriously affected or the examination probative on these issues when the examination was requested four months after the alleged occurrences. Remembering that rape was not charged and that any penetration, no matter how slight, will suffice, whether or not a physical examination would reveal this child to be virginal would not affect her credibility. It would lack any probative value and be irrelevant on the issues before the trial court.

The trial court did not commit reversible error and did not abuse its discretion in allowing the District Attorney to examine the complainant concerning other similar acts committed on her by the defendant both prior to and subsequent to the offense charged in the indictment. The rule laid down by this court in People v. Molineux (168 N. Y. 264) allows evidence of other similar crimes between the parties. Such evidence here was admissible to show, inter alia, intent, motive and a common plan and scheme.

The argument is advanced that People v. Thompson (212 N. Y. 249), which permitted evidence of other similar crimes in the discretion of the trial court both before and after the act charged in the indictment, by and between the same parties, on the theory that it shows a course of lascivious conduct or predisposition to the commission of the act charged, should be limited to the type of cases mentioned specifically therein, i.e., rape, seduction and incest. We do not agree for the simple reason that the Thompson decision in no way attempted to set down any limitation on the Molineux rule, but rather cited these crimes by way of example only.

We cannot say that the trial court abused its discretion inasmuch as the evidence was properly received. (See People v. O’Sullivan, 104 N. Y. 481; 167 A. L. R. 565 et seq.; 621-622.)

Accordingly, the judgment of conviction should be affirmed.

Desmond, J. (dissenting).

I agree with Judge Burke for affirmance.

The prosecution unquestionably made a prima facie showing of guilt and we are powerless (as in all noncapital criminal appeals) to review the facts. As to the absence of corroboration of the prosecutrix, I refer to my dissenting opinion in People v. Oyola (6 N Y 2d 259, 268, decided herewith).

Chief Judge Conway and Judge Froessel concur with Judge Van Voorhis; Judge Fuld concurs in a separate opinion; Judge Burke dissents in an opinion in which Judge Dye concurs and in which Judge Desmond concurs in a separate opinion.

Judgment reversed, etc.  