People v. Cipollina

Appeals by the People from two orders of the County Court, Nassau County, each dated May 28, 1963. One order granted defendant’s motions to inspect the Grand Jury minutes upon the basis of which the two indictments numbered 18346 and 18347 were found; the other order dismissed said indictments. Orders reversed, motions denied, and indictments reinstated. In these two indictments the defendant is charged, in various counts and with respect to three children under the age of 12 years, with commission of the crimes of sodomy in the first degree, assault in the second degree, carnal abuse of a child, and endangering the life, health and morals of a child. The indictments were founded upon the uncorroborated but sworn testimony before the Grand Jury of the alleged victims. In our opinion, the learned court below erred in holding that such testimony is, as a matter of law, insufficient to sustain the indictments (Code Crim. Pro., § 392; People v. Porcaro, 6 N Y 2d 248; People v. Oyola, 6 N Y 2d 259; People v. Levy, 265 App. Div. 841; People v. Peary, 249 App. Div. 851). To be distinguished from the ease at bar are those cases where, after a trial, “ the testimony of children was evaluated in the light of the defendant’s version of the incident and of other evidence adduced on his behalf. In such a situation it may well be that a defendant’s guilt may not be deemed to he established beyond a reasonable doubt; yet the selfsame evidence adduced on behalf of the complainant before the Grand Jury, without the defendant’s version or evidence adduced on behalf of the defendant, would be prima fade sufficient [if sworn] to establish the offense charged ” (People v. Peary, supra, p. 852; cf. People v. Porcaro, supra; People v. Churgin, 261 N. Y. 661). Beldock, P. J., Kleinfeld, Christ, Hill and Rabin, JJ., concur.