PEOPLE v. GUTKAISS (2003)

Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered May 21, 1993, upon a verdict convicting defendant of, inter alia, the crime of sodomy in the first degree.

On this reinstated appeal (280 A.D.2d 875, 720 N.Y.S.2d 851), we are compelled to agree with defendant's contention that the trial evidence was insufficient to support his conviction under count 17 only of a multicount indictment.   This particular count, charging defendant with sodomy in the first degree, stems from allegations that he placed his penis into his then 6-year-old nephew's anus while the two were in a family trailer in the Town of Argyle, Washington County, during the winter of 1987.¹  Although the victim gave a September 10, 1992 statement to police in which he recalled an incident that occurred in the subject trailer wherein defendant “put his penis into [his] butt,” his trial testimony established only that defendant “touched” his anus in the trailer during the subject time period.   The victim was unable to remember at trial the specific body part of defendant that came into contact with him (see People v. Stroman, 84 A.D.2d 851, 851, 444 N.Y.S.2d 166 [1981];  see generally People v. Stuart, 255 A.D.2d 909, 681 N.Y.S.2d 720 [1998], lv. denied 92 N.Y.2d 1039, 684 N.Y.S.2d 504, 707 N.E.2d 459 [1998] ).   Specifically, the victim never testified that defendant's penis came into contact with his anus in the trailer during the time period alleged in the indictment nor was any other evidence offered in support of this charge (see Penal Law § 130.00[2] ).   Moreover, while the victim was subsequently able to recount an incident wherein defendant in fact placed his penis into his anus, this latter testimony was in reference to a completely different time period and location than that charged under count 17.   This being the case, his conviction under count 17 must be reversed (see People v. Swackhammer, 260 A.D.2d 939, 940-941, 692 N.Y.S.2d 177 [1999], lv. denied 93 N.Y.2d 1028, 697 N.Y.S.2d 587, 719 N.E.2d 948 [1999];  People v. Stroman, supra at 851, 444 N.Y.S.2d 166).

ORDERED that the judgment is modified, on the law and the facts, by reversing defendant's conviction of the crime of sodomy in the first degree under count 17 of the indictment;  dismiss said count and vacate the sentence imposed thereon;  and, as so modified, affirmed.

FOOTNOTES

1.   The indictment specifically narrows the time period to before Christmas of that year.

CARPINELLO, J.

CARDONA, P.J., MERCURE, CREW III and ROSE, JJ., concur.