Defendant, having been convicted on April 7, 2004 following a jury trial of Sodomy in the First Degree, as well as several other charges which are not the subject of the instant motion, has brought a motion to set aside the verdict as to the conviction for Sodomy in the First Degree. The People oppose the motion.

Specifically, defendant claims that the evidence adduced at trial was legally insufficient to prove "forcible compulsion," a necessary legal element for conviction of Sodomy in the First Degree.

Defendant, at the time of the instant crimes, was employed by the New York State Office of Children and Family Services as a staff member at a juvenile residential facility. The victims, including the victim of the subject count of Sodomy in the First Degree, were residents confined in the facility where defendant worked. The victim of the subject count was nineteen years old at the time of the sodomy.

Initially, following a guilty verdict, evidence must be viewed in a light most favorable to [*2]the People. People v Thompson, 72 NY2d 410 (1988) at 413. Further, a verdict is supported by legally sufficient evidence when "there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial." People v Bleakley, 69 NY2d 490 (1987) at 495.

The subject count in question is a guilty verdict for Sodomy in the First Degree in violation of Penal Law (PL) � 130.50(1) which states: "A person is guilty of sodomy in the first degree when he or she engages in deviate sexual intercourse with another person by forcible compulsion." The term "forcible compulsion" is defined in PL � 130.00(8) as follows:

"Forcible compulsion" means to compel by either:

a: use of physical force; or

b: a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnaped."

The Court finds that the victim's testimony establishes that the defendant used "forcible compulsion" in compelling the victim to engage in deviate sexual intercourse with the defendant. The victim testified that after several refusals to engage in sex with the defendant on the night in question the defendant came into her room, "grabbed my arm" and directed her to go to the laundry room. (Transcript of trial testimony of complainant's direct examination page 28, lines 9-16.) The victim testified as follows regarding the events in the laundry room:

"Complainant: He put his left hand over my head pushing it towards his penis, and unzippered his pants with his right hand.

ADA: And then what did he do with his left hand?

Complainant: He made me suck his penis.

ADA: When you say that, how did he do that with his hand? How did he make you?

Complainant: Pushing my head towards his penis.

ADA: And did you put the defendant's penis in your mouth?

Complainant: Yes, I did.

ADA: Did you do that voluntarily?

Complainant: No, I did not."

(Transcript of trial testimony of complainant's direct examination page 30, line 17-page 31, line 6.)

Defendant's actions of grabbing the victim's arm and of pushing her head down towards his penis are sufficient to permit the jury to conclude that the defendant used "forcible compulsion" to compel the victim to perform the sodomy. This is so even though the victim did not immediately cry out or suffer any actual physical injury. See, for example, People v Smith, 302 AD2d 677, 756 NYS2d 290 (3rd Dept. 2003.)

The case law interpreting "forcible compulsion" holds that "the fact that the complainant did not suffer any physical injury as a result of the sexual attack does not render the verdict against the weight of the evidence." People v Williams, 259 AD2d 509, 687 NYS2d 167 (2nd Dept. 1999) citing People v Hodges, 204 AD2d 739, 612 NYS2d 420 (2nd Dept. 1994.) The cases [*3]make clear that all of the facts and circumstances must be evaluated in determining whether "forcible compulsion" was used. "Forcible compulsion can be inferred from the facts leading up to the rape and/or sodomy." People v Gonzalez, 136 AD2d 735, 524 NYS2d 73 (2nd Dept. 1988.) For example, in Hodges, id, in rejecting a challenge to the jury's finding on the element of "forcible compulsion", the court specifically cited the reason the complainant did not cry out for help in the court's assessment of whether "forcible compulsion" was used. The Hodges court pointed to the complainant's testimony that "she did not cry out because she feared getting into trouble if she awakened the only other persons in the apartment at the time of these incidents, who were young children." Hodges, id, at 739. Similarly, here, the complainant testified that defendant specifically threatened the complainant, who was scheduled to be released from the facility on the day following the sodomy, with being held in the juvenile facility for a longer period of time if she did not do what he said to do:

"ADA: And what did the defendant do when he came into your room?

Complainant: He grabbed my arm.

ADA: Did he say anything to you, when he came into your room?

(Transcript of trial testimony of complainant's direct examination page 28, lines 7-18.)

The Court is not called upon to reach the issue of whether the threat of extended incarceration, standing alone, is sufficient to establish "a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person" [PL � 130.00(8)(b)]. The Court, nonetheless, finds that such a threat is a significant factor which must be considered in assessing all of the facts and circumstances to determine whether the defendant utilized "forcible compulsion" in perpetrating the instant offense. The case law makes clear that the nature of defendant's relationship to the victim is a relevant factor in determining "forcible compulsion." People v Sehn, 295 AD2d 749, 744 NYS2d 526 (3rd Dept. 2002) at 750.

The Court, having heard the testimony of the victim at the time of trial and having carefully re-read the transcript of that testimony and according great deference to the jury's assessment of the credibility and demeanor of the witnesses, concludes that the jury's finding that the defendant used "forcible compulsion" in carrying out the instant sodomy, was a reasonable and logical conclusion for the jury to reach and should not be disturbed. In the instant case, defendant's superior age and size over the victim, defendant's position of authority over the victim, defendant's threats of extending the victim's length of detention, coupled with the physical acts by the defendant of grabbing the victim's arm, directing her to an empty laundry room in the middle of the night and physically pushing the victim's head down and directing her to suck his penis, all compel the Court to find that the jury's finding of "forcible compulsion" is [*4]amply supported by legally sufficient evidence.

Accordingly, defendant's motion to set aside the conviction for Sodomy in the First Degree as being based upon legally insufficient evidence to prove the element of "forcible compulsion" is denied.

This constitutes the decision and order of the Court.

______________________________

J.C.C.

3