You are here: / / THE FELONY COMPLAINT CHARGED DEFENDANT WITH RAPE FIRST (FORCIBLE COMPULSION);...

THE FELONY COMPLAINT CHARGED DEFENDANT WITH RAPE FIRST (FORCIBLE COMPULSION); THE SUPERIOR COURT INFORMATION (SCI) CHARGED RAPE THIRD (LACK OF CONSENT); BECAUSE RAPE THIRD AS CHARGED IN THE SCI WAS NOT A LESSER INCLUDED OFFENSE OF RAPE FIRST AS CHARGED IN THE FELONY COMPLAINT, THE WAIVER OF INDICTMENT AND SCI WERE JURISDICTIONALLY DEFECTIVE (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction by plea to a superior court information (SCI), determined the SCI did not charge the felony charged in the felony complaint (rape first) or a lesser included offense rendering the waiver of indictment and SCI jurisdictionally defective. The SCI charged rape third based upon lack of consent:

Although we acknowledge that “it is unnecessary to forcibly compel another to engage in sexual acts unless that person is an unwilling participant” … , it is nevertheless theoretically possible for one to use physical force to compel a victim to have sexual intercourse where the victim did not clearly express nonconsent. … [O]ne who commits the greater crime of rape in the first degree by forcible compulsion through physical force does not, by the same conduct, necessarily commit the lesser offense of rape in the third degree in which the victim expressly communicated his or her non-consent … . Consequently, rape in the third degree as charged in the SCI to which defendant pleaded guilty is not a lesser included offense of rape in the first degree as charged in the felony complaint … . People v Odu, 2022 NY Slip Op 07266, Third Dept 12-22-22

Practice Point: Here the felony complaint charged rape first (forcible compulsion) and the superior court information (SCI) charged rape third (lack of consent). Therefore the offense charged in the SCI was not a lesser included offense of the offense charged in the felony complaint, rendering the waiver of indictment and SCI jurisdictionally defective.

 

You might also like
THE NINE YEARS OF PENSION CREDITS THE HUSBAND EARNED BEFORE THE MARRIAGE ARE HIS SEPARATE PROPERTY; HOWEVER THE MARITAL FUNDS USED TO PURCHASE THOSE CREDITS DURING THE MARRIAGE ARE SUBJECT TO EQUITABLE DISTRIBUTION (THIRD DEPT). ​
Review Criteria Re: Nonjury Trials Explained/Violation of Vehicle and Traffic Law, Including the Provision Requiring the Exercise of Care to Avoid Colliding with Bicyclists, Constituted Negligence Per Se
FAILURE TO INQUIRE INTO WITNESS’S REFUSAL TO TESTIFY REQUIRED A NEW HEARING.
No Appeal Lies from an Ex Parte, Sua Sponte, Judgment/Order
ANY CHALLENGE BASED ON A DEFECT IN THE SUPERIOR COURT INFORMATION AND WAIVER OF APPEAL FOR FAILURE TO SET FORTH THE DATE AND TIME OF THE OFFENSE WAIVED BY THE GUILTY PLEA; THE PLEA WAS INVALID BECAUSE OF THE INCOMPLETE COLLOQUY (THIRD DEPT).
THE COURT DID NOT CONDUCT ANY INQUIRY TO DETERMINE WHETHER A THREE-YEAR-OLD CHILD HAD THE CAPACITY TO TESTIFY; CONVICTION REVERSED (THIRD DEPT). ​
PETITIONERS’ CHALLENGE TO THE NEW PROVISIONS OF THE ELECTION LAW ADDRESSING THE NEW PROCESS OF CANVASSING ABSENTEE BALLOTS WAS PRECLUDED BY THE DOCTRINE OF LACHES (THIRD DEPT). ​
THE JUDGE, SUA SPONTE, DECIDED TO ENHANCE DEFENDANT’S AGREED-UPON SENTENCE BASED UPON HER RESPONSES TO QUESTIONS POSED BY PROBATION FOR THE PRESENTENCE REPORT; THE PROSECUTOR DID NOT ASK FOR THE ENHANCED SENTENCE; THE DEFENSE WAS NOT GIVEN AN OPPORTUNITY TO ADDRESS THE ISSUE, THEREBY DEPRIVING DEFENDANT OF DUE PROCESS (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ALTHOUGH THERE WAS DIRECT EVIDENCE DEFENDANT OWNED THE CAMERA WHICH WAS SET... DEFENDANT’S COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A VALID MOTION...