Peoplev.May

Appellate Division of the Supreme Court of New York, First DepartmentMay 5, 1977
57 A.D.2d 748 (N.Y. App. Div. 1977)

May 5, 1977


Judgment, Supreme Court, Bronx County, rendered on November 20, 1974, convicting defendant after trial by jury of the crimes of rape in the first degree, sexual abuse in the first degree and possession of a weapon as a misdemeanor unanimously reversed, on the law and on the facts, as being against the weight of the evidence (CPL § 470.20) and the indictment dismissed. Although the defendant admits that sexual intercourse took place, he contends that complainant was a willing participant. A thorough examination of this record has led to the unanimous conclusion of this court that on the totality of the evidence, we are not satisfied that the guilt of this defendant has been established beyond a reasonable doubt. It would serve no useful purpose to set out at length in this memorandum the various details brought out in the evidence. In passing we note that the trial court contented itself with the statutory definition of "Forcible compulsion" (Penal Law, § 130.00, subd 8). Under the circumstances disclosed here, the jury should have been given a far more detailed understanding on the issue of forcible compulsion as it pertains to rape (see People v Yanik, 55 A.D.2d 164).