This matter comes on by 330 motion to vacate jury verdict convicting defendant of one count of sexual assault in the first degree under penal law §130.65(1)^[FN1]. [*2]

The People submit affirmation in opposition.

The defendant submits a reply affirmation.

On October 3, 2007 a Sullivan County Grand Jury returned a six count Indictment #264-07 charging the defendant with three counts of a criminal sexual act and three counts of sexual abuse for an incident occurring on June 4, 2007 at the home of the defendant and victim ^[FN2] in the Village of Liberty.

The allegations of the Indictment specifically charge the defendant as follows:

Count I-criminal sexual act in the first degree-oral sex by forcible compulsion [PL 130.50(1)];

Count II-criminal sexual act in the third degree-oral sex by a person over age twenty-one years with a person less than seventeen years old [PL 130.40(2)];

Count III-criminal sexual act in the third degree-oral sex with a mentally disabled female [PL 130.40(1)];

Count IV-sexual abuse in the first degree-mouth to breast of female by forcible compulsion [PL 130.65(1)];

Count V-sexual abuse in the third degree-mouth to breast of female without consent (PL 130.55);

Count VI-sexual abuse in the second degree-mouth to breast of mentally disabled female [PL 130.60(1)].

A jury trial commenced on February 4, 2008 and concluded on February 7, 2008 wherein the trial jury acquitted the defendant on Counts I, II and III and were hopelessly in disagreement on Counts IV, V and VI. A mistrial was declared and the remaining counts were immediately scheduled for retrial.

At retrial the defendant was convicted by jury verdict of Counts IV, V and VI.

Defendant now moves by 330 motion for this Court to vacate his conviction under Count IV-sexual abuse in the first degree-[*3]defendant placing his mouth to the breast of female by forcible compulsion pursuant to PL §130.65(1).

In the instant matter, the evidence at trial showed that the defendant removed the victim's clothing, and then licked the victim's breasts. The victim was a mentally and physically disabled fifteen year old female. She was four feet tall, weighed approximately 90 pounds, had cerebral palsy to the extent that she could barely walk, was incapable of undressing herself, and had the mental capacity of a second or third grader. The inappropriate touching was first revealed by the victim telling her mother when she came home from work one or two hours later.

In People v Fuller, 50 AD3d 1171 (3rd Dept., 2008) the Appellate Division, Third Department modified a jury verdict by reducing a finding of guilty to sexual abuse in the first degree by forcible compulsion [PL§ 130.65(1)] to sexual abuse in the third degree by sexual contact (PL§ 130.55).

In Fuller, supra the appellate court found that the evidence did not support a finding of forcible compulsion. The evidence showed that the defendant purchased and gave liquor to his daughter and her two friends. The victim was a sixteen year old female who was rendered intoxicated by the defendant. She awoke to find the defendant on top of her, she moved him off of her and as she walked from the living room to the kitchen the defendant grabbed her buttocks and her vagina. She did not complain to the defendant or to her two females friends.

The prosecution argues that the forcible compulsion and the physical force lie in the physical, mental, and emotional helplessness of the victim as well as in the defendant's size, age, weight and position of authority.

Moreover, the Legislature by enacting PL §130.60(1) which provides that the sexual abuse of a person who is mentally and emotionally disabled is only a class A misdemeanor. Similarly, the Legislature, by enacting PL §130.55 (a) which provides the sexual abuse of a child under the age of seventeen years is only a class B misdemeanor. Thus, the factors of mental and physical disabilities and age have been separately addressed by the Legislature and do not enhance the sexual abuse to a felony level but limit it to a misdemeanor level of responsibility. [*4]

Forcible compulsion is defined by compelling another by either the use of physical force or by a threat, express or implied, which places another in fear of immediate death or physical injury to that person or another person. PL§ 130.00(8).

However, not a scintilla of evidence was presented at trial showing that defendant used physical force or a threat which placed the victim, or another person, in fear of immediate death or physical injury. Indeed, the victim was never questioned regarding any fear and in many cases of abuse the child victim may be too young to formulate a fear factor as required by the statutory definition of forcible compulsion.

Defendant herein was also found guilty of sexual abuse in the second degree under PL§ 130.60(1), a class A misdemeanor, as the victim was mentally disabled, see PL§ 130.05(3)(b), and incapable of consent and of sexual abuse in the third degree under PL§ 130.55, a class B misdemeanor, sexual contact.

In Fuller, supra the Appellate Division, Third Department modified a jury verdict by reducing a finding of guilty to sexual abuse in the first degree by forcible compulsion [PL§ 130.65(1)] to sexual abuse in the third degree by sexual contact (PL§ 130.55). This Court cannot do the same as the defendant herein was found guilty of sexual abuse in the third degree by sexual contact (PL§ 130.55).

No matter how abhorrent, aberrant, and vexing the dependant's behavior is this Court is constrained to follow the law until our legislature deems it fit to protect the disabled child with felony sanctions for their abusers. This protection in today's society with an increasing sexually abused population in autistic and challenged children is needed.

Based upon the above, it is

ORDERED, that the jury verdict of guilty to Count IV sexual abuse in the first degree by forcible compulsion [PL§ 130.65(1)] is herein and hereby vacated.

This shall constitute the Decision and Order of this Court.

DATED: July 9, 2008

Monticello, NY [*5]

___________________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate