People v. Saunders

Appeals (1) by defendant Saunders from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered July 8, 1981, convicting him of attempted sodomy in the first degree (two counts), sexual abuse in the first degree (two counts), and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence, and (2) by defendant Linton from a judgment of the same court, also rendered July 8, 1981, convicting him of attempted rape in the first degree, attempted sodomy in the first degree, sexual abuse in the first degree (two counts), and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. Judgments reversed, on the law, the charge of attempted rape in the first degree as a lesser included offense under count No. 27 of indictment No. 1105/80 against defendant Linton is dismissed without prejudice to the People to re-present any appropriate charge to another Grand Jury (see People v Beslanovics, 57 NY2d 726), and a new trial is ordered with respect to the remaining counts of the consolidated indictment. Defendants were charged with various crimes arising from an incident during which they and two other men allegedly attempted to rape, sodomize and sexually abuse three women complainants. The evidence at trial consisted primarily of the testimony of the three complainants. Defendants themselves did not testify and one witness was presented on behalf of defendant Linton. At the conclusion of the trial, and over the objections of both counsel for defendants, as well as the prosecutor, the trial court refused a request to marshal the evidence, and instead asked the parties to submit to it their contentions and theories of the case, which would be part of the charge to the jury. During the charge, the court essentially defined each crime for the jury, summarized the testimony of the witnesses only insofar as it supported the necessary elements of the crime, explained that the prosecutor believed the testimony proved each crime beyond a reasonable doubt, and then stated that defendants contended that the testimony “was not the stuff of which proof beyond a reasonable doubt is made”, whether because of questions of credibility or the lack of corroborative evidence, without setting forth any contradictory or inconsistent testimony as noted by defense counsel in their summations. The following is a representative sample of the charge: “That brings us then to the charge of Attempted 520 Rape in the 1st Degree as to the Defendant Linton relative to the Complainant DeC * * * Attempted Rape in the 1st Degree * * * may be broken down into three elements, each of which the prosecution must prove beyond a reasonable doubt. First requires proof once more that the Defendant Linton attempted to engage in sexual intercourse with the Complainant DeC * * * a female, and second, that he did so without her consent and third that * * * the absence of the consent resulted from forcible compulsion. The same definition of sexual intercourse attempted, forcible compulsion, apply here as to those you have heard previously relative to the crime of Rape in the 1st Degree. And the prosecution’s position is that her testimony was reliable and that she testified that it was the Defendant Linton who in the bathroom attempted to have sexual intercourse with her without her consent and in the overall circumstances according to the prosecution’s argument, by the use of forcible compulsion and that because she moved and avoided his effort, the attempt to have sexual intercourse with her against her will was unsuccessful * * * The Defendant Linton’s position is purely and simply once more that the testimony of* * * the Complainant DeC * * * in conjunction with all of the other evidence in the case is just plain insufficient to establish guilt beyond a reasonable doubt, is not sufficiently reliable, not sufficiently trustworthy to be the stuff of which a finding of guilty beyond a reasonable doubt is constituted” (emphasis supplied). We conclude that this type of charge constitutes reversible error. “Although the trial court marshalled the People’s evidence, it did not adequately marshal the evidence in support of the defense contentions” (People v Miles, 48 AD2d 706, 707). Moreover, the constant reiteration of the phrase, defendants contend that “the testimony * * * was not the stuff of which proof beyond a reasonable doubt is made”, or some similar phrase, following the court’s summary of only so much of the witnesses’ testimony as favored the prosecution, created confusion as to the meaning of the proper standard of proof. No defendant is required to present any proof, theories or contentions of any kind. Instead the burden of proof is wholly upon the prosecution to prove the defendant guilty beyond a reasonable doubt. The court’s mention, throughout the “contentions” part of the charge, that the prosecution had the burden of proving beyond a reasonable doubt the elements of the crimes charged, was not enough to dispel the erroneous impression given by the court, to wit, that defendants had some duty to present evidence to contradict the People’s case. The charge given was particularly harmful herein since neither defendant testified on his own behalf. Accordingly, a new trial is ordered, except as to the charge of attempted rape in the first degree as a lesser included offense under count No. 27 of indictment No. 1105/80 against defendant Linton, which count is dismissed without prejudice to the People to re-present any appropriate charge to another Grand Jury (see People v Beslanovics, 57 NY2d 726). We have considered defendants’ other contentions and find them to be without merit. Damiani, J. P., Gibbons and Rubin, JJ., concur.