People v. Doyle

Beldock, P. J. (dissenting).

I dissent and vote to reverse the order and to deny the motion to dismiss the fifth count of the indictment.

Under the former Penal Law, the .only crime specified in article 130 of the present Penal Law which was expressly required by legislation to be corroborated was rape (former Penal Law, § 2013). However, by court decision it was held that corroboration was also required even where the crime charged was impairing the morals of a minor (People v. Lo Verde, 7 N Y 2d 114) or assault with intent to commit rape (i.e., an assault designed to help commit the rape) or attempted rape (People v. English, 16 N Y 2d 719), where the only evidence of the latter crimes was a consummated rape (People v. Moore, 23 N Y 2d 565; People v. Radunovic, 21 N Y 2d 186). This extension of the requirement of corroboration by the courts could be accomplished solely by reason of the fact that there was then an absence of legislative pronouncement to the contrary. The legislation defining the latter crimes did not then provide either that there should or should not be corroboration.

Article 130 of the present Penal Law (L. 1965, ch. 1030, eff. Sept. 1, 1967) sets forth five sex offenses; .sexual misconduct, rape (in three degrees), consensual sodomy, sodomy (in three degrees) and sexual abuse (in three degrees). Section 130.15 provides: “A person shall not be 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. This section shall not apply to the offense of sexual abuse in the third degree.”

Thus, in language unambiguous, plain, clear, and explicit, the Legislature has expressly stated that corroboration is not required to sustain a conviction of sexual abuse in the third degree. The Legislature has pre-empted the area by providing that, with respect to specified offenses, corroboration is required, whereas with respect to sexual abuse in the third degree corroboration is not required.

The majority construes the last sentence of section 130.15 as if it read: ‘ ‘ This section shall not apply to the offense of sexual abuse in the third degree unless the evidence shows the commission of an offense requiring corroboration. ’ ’ Courts cannot thus enlarge or amend a .statute. That is solely a legislative prerogative. The freedom given to courts to construe a statute is not the equivalent of freedom to amend a .statute. Courts may not legislate under the guise of interpretation (Bright Homes v. Wright, 8 N Y 2d 157).

With knowledge by the Legislature of the extension by the courts of the requirement of corroboration to support convictions for .offenses where the .statute did not require corroboration, the Legislature omitted a requirement of corroboration to sustain a conviction for sexual abuse in the third degree where the evidence shows the commission of an offense requiring corroboration. Courts may not supply in a statute a provision which appears to have been intentionally and purposefully omitted by the Legislature. Courts must deal with the subject concerning which the Legislature has spoken and read the statute as it is written (People v. Kupprat, 6 N Y 2d 88). The statute reads that a person may be convicted of sexual abuse in the third degree without corroboration. This language expressly excludes the requirement of corroboration to sustain such a conviction, regardless of whether the evidence actually establishes in addition an offense which would otherwise require corroboration.

The purpose of making this exception to the requirement of corroboration was to prevent the escape by a guilty defendant from prosecution and 'conviction of the charge; this was the very gap that the Legislature intended to fill.

The result reached by the majority would not permit a conviction of a Class B misdemeanor (§ 130.55), for which the maximum penalty is three months (§ 70.15), even though there is convincing evidence that the 30- or 35-year-old defendant in the case at bar committed rape and sodomy on a 15-year-old girl, merely because there was no corroboration. In view of the fact that the statute provides that no corroboration is required to •sustain a conviction for the crime of sexual abuse in the third degree, it is my opinion that the result reached by the majority of this court is neither required nor justified and is contrary to the clear intent of the Legislature as expressed in the statute.

Brennan and Rabin, JJ., concur with Benjamin, J.; Beldock, P. J., dissents in opinion in which Christ, J., concurs.

Order affirmed.