A man was arrested and charged with the offenses of rape in the first degree, sodomy in the first degree and possession of a dangerous weapon. The offenses were allegedly committed recently after the arrest. In addition, the grand jury failed to indict the man for the rape and sodomy charges, on the ground that there was no corroboration of the complainant’s testimony as to the intercourse, but directed that information be filed on the weapons charge. The information on the possession of a dangerous weapons charge was then filed.
The man however moves to dismiss the information on the ground that the offense of possession of a dangerous weapon requires intent to use unlawfully and the only proof of unlawful intent would be the complainant’s testimony that she was raped. Since there can be no conviction for the allege offense due to lack of corroboration, the man contends that the testimony of the complainant cannot now be used to convict him of the weapons charge.
In order for the court to address itself to the man’s contention, a brief recapitulation of the legislative history of laws pertaining to corroboration is required. However, the court of appeals subsequently overruled the line of cases and held that convictions for the crimes of attempted rape, assault and other offenses related to the offense could not be sustained where the only evidence against the opponent was the uncorroborated testimony that a consummated rape had occurred. Moreover, the reasoning of the court of appeals in the various cases was that the only testimony implicating the man in the non-rape charges was testimony of an actual rape.
Based on records, the new penal law extended the corroboration requirement not only to every sex offense but also to an attempt to commit such sex offense. In effect, the codified rule enunciated in previous case and modified the holding by requiring corroboration in a prosecution of attempted rape when the evidence shows that the crime was not consummated. Moreover, the corroboration requirements of the penal law lasted only five years and the section was modified by the legislature. The amended section only required a corroboration of the victim’s testimony that an attempt was made to engage the victim in intercourse and that the victim did not consent to the intercourse. Of more importance to the case, however, was the addition of subdivision. The pertinent part of this subdivision states that the section does not apply to a conviction for any offense defined in any provision of law outside the article. Unless expressly provided by law, the requirements of corroboration prescribed in this section do not become applicable in a prosecution for any such offense because the commission of or intent to commit an offense defined in the article was an element and integral part of such other offense.
Most recently, the legislature repealed another section. The corroboration is not required for conviction of any sex crimes except where the lack of consent of the victim to the act results from an incapacity to consent because of age, mental defect, or mental incapacity.
It is clear that in reference to the offense of possession of a weapon in both the governor’s memoranda and the supplemental practice commentary refer to possession of a weapon with intent to use unlawfully, not possession of the weapon itself.
In the instant case, the rape allegedly took place and the applicable law to be applied to the facts is the revised to section. The subdivision of that section was specifically enacted to deal with the type of case presented here.
Consequently, the court finds that the man’s motion to dismiss the information is denied.
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