People v. Ezeonu - 155 Misc. 2d 344, 588 N.Y.S.2d 116 (Sup. Ct. 1992)

Rule:

A person is guilty of rape in the second degree when, being eighteen years old or more, he or she engages in sexual intercourse with another person to whom the actor is not married less than fourteen years old.

Facts:

Defendant Gregory Ezeonu was indicted for the crimes of rape in the first degree and rape in the second degree. Plaintiff People of the State of New York contended that the complainant was 13 years old at the time of the alleged crimes. For this part, defendant, a Nigerian national, moved in limine and raised as a defense to the charge of rape in the second degree that at the time of the alleged crimes, the complainant was his second or junior wife, given to him by her parents in Nigeria pursuant to the laws and tribal customs of that country. Defendant acknowledged that he already was legally married under both New York and Nigerian law at the time he entered into the purported second marriage, however, defendant asserted that the laws and tribal customs of Nigeria allowed one man to have multiple wives. Thus, raising the defense of marriage pursuant to N.Y. Penal Law § 130.30.

Issue:

Was the defendant considered married with the complainant pursuant to Penal Law § 130.30?

Answer:

No.

Conclusion:

The court found that defendant stipulated that he was legally married in New York and Nigeria at the time when he purportedly married complainant. The court, however, ruled that while Nigerian law and custom permitted a junior wife, New York did not recognize that status. Therefore, defendant could not raise his purported marriage to complainant, as a defense to the charge of rape in the second degree because defendant was married to his living wife and his marriage to complainant was absolutely void. Accordingly, defendant was not entitled raise marriage as a defense.