People v. Evans

Kupferman, J. (concurring):

Much has been written about the unfairness of the legal requirements with respect to obtaining a conviction in a case *911involving sexual abuse. See, for example, “ Q. If you rape a woman and steal her TV, What can they get you for in New York? A. Stealing her TV.” by Martha Weinman Lear (New York Times Magazine, Jan. 30, 1972, § 6, p. 11.) (This article is corroborated by People v. Moore, 23 N Y 2d 565; New York Times Editorial, “Raped by the Law”, Monday, Feb. 14, 1972, p. 28, col. 2.) Suggestions have been made for legislation changing the requirement of corroboration, at least in those situations where the prosecutrix had not prior thereto known the defendant. (Matter of Sam “ F. ”, 68 Misc 2d 244, in which then Family Court Judge, now Surrogate, Millard L. Midonick advocated a change, see N. Y. L. J., Jan. 3, 1972, p. 1, col. 6.) Indeed, our colleague, Judge James B. M. McNally in a letter to the editor of the New York Law Journal (Jan. 21, 1972, p. 4, col. 7) advocated such legislation. (See, also, The Case for Repeal of the Sex Corroboration Requirement in New York, Frederick J. Ludwig, 36 Brooklyn L. Rev. 378.) However, the fact that corroboration is required, both as to the sexual intercourse by force and compulsion, and as to the identity of the culprit, does not mean that it cannot be obtained. (Note, Corroborating Charges of Rape, 67 Columbia L. Rev. 1137, 1139.) In the leading ease of People v. Radunovic (21 N Y 2d 186), where in a four to three decision, a conviction was reversed, it was stated at page 190: " The bruise on the thigh of the complainant in the Raduvonic 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.” (Italics added.) The question raised by the dissent in our case, where the complainant was clearly and undoubtedly abused sexually, is the nature of the corroboration with respect to the guilt of the defendant, for there can be no reasonable doubt of his guilt. We find, as the court did in People v. Masse (5 N Y 2d 217) that the evidence connecting the defendant with the events as testified to by the complainant, is more than “ an immaterial fact ’ ” and “ it is one of the ‘ surrounding circumstances of the case with sufficient corroborative value to meet the mandate of the statute” (p. 222). The complainant described the most'outstanding feature on the defendant, namely a perpendicular scar which ran from the center of his chest down to the abdomen. Never having seen the defendant before, the location of the scar and its description would not become known to the complainant in any casual way. Further, a large blue comb which the intruder had protruding from his trousers when he disrobed at the scene, and several days later when he was apprehended, was also something of a personal nature which confirmed his identity. Only recently, in People v. Dupre (36 A D 2d 794, mot. for lv. to app. den. by Fuld, Ch. J.) we affirmed a conviction basing corroboration on the fact that the defendant was revealed to have the nickname “ Frenehie ”, both at the time of the rape and at his later apprehension. (See, also, People v. Linzy, 38 A D 2d 648.) Here the conviction is amply sustained by the evidence, and the only question is the section of the Penal Law of the State of New York, which provides: “§ 130.15 Sex offenses; corroboration. A person shall not lie convicted of any offense defined in this article, or of an attempt to commit the same, solely on the uncorroborated testimony of the alleged victim.” The objective independent facts with regard to the scar and the comb provide the necessary corroboration, and we would affirm the conviction. This interpretation goes “ far toward rationalizing a rule which, however salutary its original intention, has thus far in its existence been troublesome in application and at times absurd in result.” (The Requirement of Corroboration in Prosecutions for Sex Offenses in New York, by Judge Irving Younger, 40 Fordham L. Rev. 263, 278.)