Joseph M DiNapoli
Was falsely accused arrested and imprisoned for six months by Captain Joseph “Pig Face” Leo of the Lackawanna NY police department for numerous sex crimes he did not commit. He was then maliciously prosecuted by Lackawanna city attorney Antonio M. Savaglio AKA “Scaglio”
During his 6 months in prison for crimes he did not commit his life his college education and budding football career at ECC were utterly destroyed.
Here you see the dismissal of all charges against Mr. DiNapoli a civil suit is pending against the city of Lackawanna NY for $5,000,000.00
Crimes — Sexual Misconduct — Forcible Compulsion
The common element of rape in the first degree, a class B felony, and sexual misconduct, a class A misdemeanor, which is not a lesser included offense to rape in the first degree, is a lack of consent by the female to sexual intercourse resulting from “forcible compulsion” and where a Grand Jury found no bill with respect to rape in the first degree, it reflects a failure to find reasonable cause to believe that there was forcible compulsion; accordingly, an indictment for sexual misconduct upon the allegation that the defendant engaged in sexual intercourse with a female without her consent is dismissed.
COUNSEL: Daniel R. Taylor, District Attorney, for plaintiff.
William Gray for defendant.
JUDGES: Frederick D. Dugan, J.
OPINION BY: DUGAN
[*941] OPINION OF THE COURT
[**987] Defendant is here indicted for sexual misconduct, the class A misdemeanor, in violation of section 130.20 of the Penal Law upon the allegation that on or about March 26, 1978 he engaged in sexual intercourse with a female without her consent.
No issue of the physical or mental condition [***2] or the capacity of the 18-year-old complainant is raised in reference to her alleged lack of consent.
Upon the argument of the defendant’s motion to dismiss the indictment, the prosecution with commendable candor indicates that the Grand Jury was charged by the District Attorney with a presentation of the elements of rape in the first degree (class B felony), violation of section 130.35 of the Penal Law, and then the elements of sexual misconduct (class A [*942] misdemeanor), violation of section 130.20 of the Penal Law. These presentations to the Grand Jury are revealed in the court’s in camera inspection of the transcript of the proceedings before the body on March 31, 1978 when it found no bill on the rape offense and indicted defendant for sexual misconduct.
Rape in the first degree (Penal Law, § 130.35, subd 1) proscribes a male engaging in sexual intercourse with a female by “forcible compulsion”. The offense of sexual misconduct (Penal Law, § 130.20, subd 1) contemplates that being a male, a defendant engages in sexual intercourse with a female without her consent.
HN1Go to the description of this Headnote.Subdivision 2 of section 130.05 of the Penal Law provides that the common element of every sex [***3] offense (except consensual sodomy) of lack of consent results from “forcible compulsion”. Thus, the element of forcible compulsion for both rape in the first degree and sexual misconduct here is identical. (CJI [NY], Preliminary Publication, 1977, Sex Offenses, art 130, Authorities & References, par 4, p 99, and par 12, p 103; Sexual Misconduct, p 106; Rape First Degree, p 122.)
HN2Go to the description of this Headnote.The offense of sexual misconduct is not a lesser included offense to rape in the first degree. ( People v McEaddy, 30 NY2d 519.) Here the Grand Jury finding of no bill on the rape in the first degree offense reflects a failure to find reasonable cause to believe there was forcible compulsion, the identical element required to support its indictment for sexual misconduct.
Submission of the proof under these circumstances contemplates prosecutorial discretion [**988] to elect which offense is to be submitted to the Grand Jury, a District Attorney’s discretion which has been held not to violate either due process or equal protection standards. ( People v Vicaretti, 54 AD2d 236.) [***4]
Defendant’s motion to dismiss the indictment is granted.