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People v. Mormile

Appellate Division of the Supreme Court of New York, First Department
Apr 18, 2006
28 A.D.3d 333 (N.Y. App. Div. 2006)

Summary

finding that N.Y.P.L. § 130.30, engaging in sexual intercourse with a person less than fifteen years old while being over the age of eighteen, is a strict liability offense

Summary of this case from Acevedo v. Barr

Opinion

8294.

April 18, 2006.

Judgment, Supreme Court, New York County (Charles Solomon, J.), rendered April 20, 2004, convicting defendant, upon his plea of guilty, of attempted rape in the second degree, and sentencing him to a term of 30 days concurrent with 10 years' probation, unanimously affirmed.

Schuman Abramson Morak, New York (Sally Wasserman of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Marc Krupnick of counsel), for respondent.

Before: Tom, J.P., Friedman, Sullivan, Gonzalez and McGuire, JJ.


As the result of an undercover operation involving the Internet, defendant was indicted for, and convicted of, attempting to have sex with a police officer who posed as a 13-year-old girl. It is not a legal impossibility for defendant to have committed the crime of attempted rape in the second degree (i.e., attempted statutory rape), even though, with regard to the age of the victim, the crime is one of strict liability pursuant to Penal Law § 15.20 (3). Engaging in sexual intercourse with a person who does not give, or is incapable of giving, consent is the core conduct prohibited by the statute (Penal Law § 130.30), and the age of the victim is an aggravating circumstance that makes the actor's conduct felonious ( see People v. Coleman, 74 NY2d 381, 385). Thus, "[n]otwithstanding the strict liability nature of the underlying . . . offense, a defendant may legally and logically attempt to act in the manner proscribed by this penal statute" ( People v. Saunders, 85 NY2d 339, 341). Moreover, as a matter of policy, "[t]he premise of the Legislature's recognition of attempt culpability is that an actor's objectives and actions, though failing to achieve a desired goal, `constitute a danger to organized society of sufficient magnitude to warrant the imposition of criminal sanctions'" ( id. at 344, quoting People v. Dlugash, 41 NY2d 725, 726). Such is the case here. Furthermore, since defendant mistakenly believed the victim to be under the age of 15, "[i]t is no defense that, under the attendant circumstances, the crime was factually or legally impossible of commission, `if such crime could have been committed had the attendant circumstances been as [defendant] believed them to be'" ( People v. Dlugash, 41 NY2d at 735, quoting Penal Law § 110.10).

Defendant's challenges to the grand jury proceedings are foreclosed by his guilty plea ( see People v. Hansen, 95 NY2d 227; compare People v. Pelchat, 62 NY2d 97), and are without merit in any event.


Summaries of

People v. Mormile

Appellate Division of the Supreme Court of New York, First Department
Apr 18, 2006
28 A.D.3d 333 (N.Y. App. Div. 2006)

finding that N.Y.P.L. § 130.30, engaging in sexual intercourse with a person less than fifteen years old while being over the age of eighteen, is a strict liability offense

Summary of this case from Acevedo v. Barr

In People v. Mormile, 28 AD3d 333, lv. den. 7 NY3d 759, the defendant was convicted of attempting to rape a 13 year old girl who was in fact a police officer posing as such on the internet.

Summary of this case from People v. Michael Z.
Case details for

People v. Mormile

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RAYMOND MORMILE…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 18, 2006

Citations

28 A.D.3d 333 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 2830
812 N.Y.S.2d 524

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