Opinion
No. 2014NY037298.
10-14-2014
The PEOPLE of the State of New York, v. Brian HELM, Defendant.
The Legal Aid Society, by Ebette M. Fortune, Esq., for the Defendant. Cyrus R. Vance, Jr., New York County District Attorney, by ADA Francesca Bartolomey, for the People.
The Legal Aid Society, by Ebette M. Fortune, Esq., for the Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by ADA Francesca Bartolomey, for the People.
Opinion
STEVEN M. STATSINGER, J.
Defendant, charged with Forcible Touching, in violation of Penal Law § 130.52, and Sexual Abuse in the Third Degree, in violation of Penal Law § 130.55, moves to dismiss the Information for facial insufficiency. For the reasons discussed below, defendant's motion to dismiss Count One, the Forcible Touching count is GRANTED, and the motion to dismiss Count Two, the Sexual Abuse in the Third Degree count is DENIED.
I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, while on the subway, the defendant placed his hand on the complainant's buttocks without her consent.
B. Legal Proceedings
Defendant was arraigned on May 13, 2014, on a Misdemeanor Complaint charging him with Forcible Touching, in violation of Penal Law § 130.55 (Count One) and Sexual Abuse in the Third Degree, in violation of Penal Law § 130.55 (Count Two). The court set bail, and adjourned the case for conversion. Defendant posted bail and, on May 16, 2014, the People filed the Supporting Deposition of the complainant.
Defendant filed the instant motion to dismiss on July 9, 2014, and the People responded on August 13. The matter has been sub judice since then.
II. THE ACCUSATORY INSTRUMENT
The Misdemeanor Complaint, sworn out by Police Officer Matthew Doherty, provides that on May 13, 2014:
I observed defendant board a southbound “2” train at West 72nd Street directly behind Allison Appelbaum.... I observed the defendant stand directly behind Ms. Applebaum. I then observed the defendant moving his arm in an up and down motion behind Ms. Applebaum. I observed Ms. Applebaum turn around and give the defendant an uncomfortable look.
I am informed by Ms. Applebaum that while riding the subway at the above location, she felt a hand touching her buttocks without her consent.
The Misdemeanor Complaint was corroborated by a Supporting Deposition from Ms. Applebaum, dated May 14, 2014.
III. DISCUSSION
Defendant argues that both of the counts against him are facially insufficient. He is correct as to Count One, which does not make out a prima facie case of Forcible Touching. Count Two, however, is sufficient, as there is a reasonable inference that defendant acted with the requisite intent.
A. Facial Sufficiency in General
A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 (2014) ; People v. Alejandro, 70 N.Y.2d 133, 138–39, 517 N.Y.S2d 927, 930–31, 511 N.E.2d 71, 74 (1987). Accordingly, a misdemeanor information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof.” People v. Kalin, 12 NY3d 225, 228–29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009) (citing People v. Henderson, 92 N.Y.2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40(1)(c) ). This is known as “the prima facie case requirement.” Kalin, 12N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.
The prima facie case requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the Information need only contain allegations of fact that “give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense.” People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the Information to a “fair and not overly restrictive or technical reading,” id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15 ; People v. Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721–22, 967 N.E.2d 1160, 1166–67 (2012). See also Casey, 95 N.Y.2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.
Under these standards, the Information here is facially insufficient as to Count One, but facially sufficient as to Count Two.
B. The Information Does not Allege a “Forcible” Touching
A person violates Penal Law § 130.52 when he “intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor's sexual desire.” The term “forcibly” includes “squeezing, grabbing or pinching.” Here, however, while the Information alleges a “touch,” it alleges no fact from which it can be reasonably inferred that the touch was “forcible.”
The term “forcible” is not defined in the statute, but it is clear that the term requires something more than mere bodily contact. People v. Parbhu, 191 Misc.2d 473, 479, 743 N.Y.S.2d 660, 666 (Crim. Ct. N.Y. County 2002) ; People v. Flynn, 123 Misc.2d 1021, 475 N.Y.S.2d 334 (Sup. Ct, N.Y. County.1984) (body contact alone, “when effected by mere touching” is not physical force). Physical force exists where there is some “power or strength or violence exerted against a body.” Flynn, 123 Misc.2d at 1023, 475 N.Y.S.2d 334. See also People v. Thompson, 158 A.D.2d 563, 551 N.Y.S.2d 332 (2d Dept.1990) (force existed where victim testified that “defendant cornered her, threw her down and ... had sexual intercourse with her against her will”); People v. Williams, 152 A.D.2d 989, 543 N.Y.S.2d 1013 (4th Dept.1989) (victim's testimony that defendant pulled her by the arm and led her into the house, “ripped her shirt off, threw her on the sofa and pressed on her shoulders during intercourse” was sufficient to show forcible compulsion); People v. Randall, 86 A.D.2d 918, 448 N.Y.S.2d 547 (3d Dept.1982) (testimony that “defendant grabbed her by the hair and held her in a firm grip” while forcing her to engage in sex acts was sufficient to establish lack of consent by forcible compulsion).
Where only physical contact is alleged force can still be found if it is also alleged that the defendant took advantage of his greater physical size and strength, as compared to the victim. People v. Dorsey, 104 Misc.2d 963, 429 N.Y.S.2d 828 (Sup.Ct. Bronx County 1980) (forcible compulsion found where defendant, who was approximately seven inches taller and seventy pounds heavier that the victim, stopped an elevator between floors, thereby trapping the victim inside the elevator); People v. Pace, 145 A.D.2d 834, 535 N.Y.S.2d 821 (3d Dept.1988) (evidence sufficient to establish forcible compulsion where, after refusing to go voluntarily, ten-year-old victim was pulled into bedroom by brother-in-law who was older, bigger and stronger, and the victim's injuries were severe and painful), or where either the physical condition of the victim or the scene of the offense shows signs of a struggle. See, e.g., People v. Umber, 260 A.D.2d 722, 687 N.Y.S.2d 822 (3d Dept.1999) (element forcible compulsion met where victim testified that defendant punched and choked her and physical evidence showed that bruising to victim's arms were consistent with being held down and forcibly grabbed); People v. Miller, 210 A.D.2d 724, 620 N.Y.S.2d 179 (3d Dept.1994) (forcible compulsion found where victim's shirt was pulled up above her breasts, her pants and underwear were pulled down, and the crime scene was consistent with the occurrence of struggle).
The Information here contains no fact that would establish that the defendant used force. It alleges only bodily contact-a touching-but does not allege that the defendant exerted any degree of power or strength when he touched the complainant. There is no allegation that the defendant took advantage of any differential in size or strength, nor is there any evidence of a physical struggle. In short, the Information alleges only that the defendant was seen “moving his arm in an up and down motion behind” the complainant and that the complainant “felt a hand touching her buttocks without her consent.” This is simply not enough.
In a highly similar case, People v. Nuruzzaman, 8 Misc.3d 356, 797 N.Y.S.2d 728 (Crim. Ct N.Y. County 2005), the court likewise found an information charging a violation of § 130.52 to be facially insufficient. There, the allegation was that the defendant placed his hand on and “patted” the complainant's buttocks without her consent. That court turned to the dictionary definition of “forcible,” noting that
The word forcible connotes something “done by force, vigorous and strong and powerful” (The New Oxford Dictionary of English) or that which is “effected by force used against opposition or resistance.” (Merriam—Webster Online Dictionary). To squeeze is to “firmly press from opposite or all sides” (New Oxford). To grab is to “grasp or seize suddenly or roughly” (id. ). To pinch is to “grip tightly and sharply between finger and thumb” (id. ). In contrast, to pat is to “touch quickly and gently with the flat of the hand” (id. ) or “to tap or stroke gently with the hand to soothe, caress or show approval”. (Merriam—Webster).
Id. As here, the court refused to equate a mere “touching” with a “forcible touching.” Id.
Accordingly, absent any fact from which it might be inferred that the defendant touched the defendant with force, the Information is facially insufficient as to Count One.
C. The Information Sufficiently Alleges the Requiste Specific Intent
With respect to Count Two, defendant argues that the Information fails to sufficiently allege that he acted with intending to gratify himself sexually. Here, however, there is a reasonable inference that this was indeed the defendant's intent.
Penal Law § 130.55 provides that a “person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent.” “Sexual contact” means:
any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.
Penal Law § 130.00(3).
Here, defendant does not contest that the Information sufficiently alleges that he touched the victim through her clothing, an act that clearly constitutes “sexual contact.” He claims only that the Information does not allege that he acted with the “purpose of gratifying [his] sexual desire.” However, it is generally true that intent, including this particular form of specific intent, can be inferred from the nature of the acts committed and the circumstances they occurred. In re Lauryn H., 73 AD3d 1175, 900 N.Y.S.2d 764 (2d Dept.2010). For this reason, as long as the facts alleged support the inference, the Information need not specifically allege that the defendant acted with the purpose of sexual gratification. People v. Rodriguez, 1 Misc.3d 8, 9, 764 N.Y.S.2d 301, 302 (App. Term 2d Dept 2003).
Thus, for example, in People v. Stewart, 57 AD3d 1312, 1315, 870 N.Y.S.2d 157, 160 (3d Dept.2008), the element of sexual gratification was sufficiently established where the defendant waited until he was alone with the complainant then placed his hand on her buttocks. Indeed, courts have frequently found that this element was satisfied on facts little different than those alleged here. E.g., People v. Williams, 94 AD3d 1555, 943 N.Y.S.2d 714 (App.Div. 4th Dept.2012) (“The jury reasonably could have found that defendant engaged in [s]exual contact' when he touched the victim's buttocks ..., and that such touching was for the purpose of gratifying [defendant's] sexual desire.' ”) (citations omitted); In re Daniel R., 70 AD3d 839, 894 N.Y.S.2d 165 (2d Dept.2010) (“the touching of the buttocks or the leg can constitute sexual abuse ... and the intent to gain sexual gratification may be inferred from the acts themselves”); People v. Hernandez, 36 Misc.3d 145(A), 960 N.Y.S.2d 51 (App. Term 1st Dept.2012) ; People v. McGee, 16 Misc.3d 1107(A), 841 N.Y.S.2d 827 (Crim Ct N.Y. County 2007).
Accordingly, the Court concludes that the allegations that the defendant touched the complainant's buttocks without her consent, moving his hand up and down while he did so, in public on a subway train make out the requisite intent. Indeed, the Court observes that defendant's motion proffers no innocent explanation for this conduct, and none is immediately apparent from these facts.
D. Conclusion
For the above reasons, the motion to dismiss Count One is granted. The motion to dismiss Count Two is denied.
IV. CONCLUSION
The motion to dismiss Count One is granted, while the motion to dismiss Count Two is denied.
This constitutes the Decision and Order of the Court.