Opinion
2008KN069604.
Decided September 17, 2009.
The People were represented by: Charles Hynes, District Attorney, Kings County, (Connie Solimeo, Assistant District Attorney) Kings County District Attorney's Office, Brooklyn, NY.
The defendant was represented by: Steven Banks, Esq., (Niamh O'Flaherty, of counsel), Brooklyn, NY.
Defendant is charged with one count of Harassment in the Second Degree pursuant to Penal Law § 240.26(1), one count of Endangering the Welfare of a Child pursuant to Penal Law § 260.10 and one count of Attempted Sexual Abuse in the Third Degree pursuant to Penal Law § 110/130.55. By Notice of Motion dated July 1, 2009, defendant moves for dismissal of the information for facial insufficiency pursuant to Criminal Procedure Law §§ 170.30 and 170.35. The People oppose defendant's motion to dismiss.
DECISION
Section 100.40 (1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms with the requirement of CPL § 100.15, when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360; cit omitted. "Thus, this prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial." People v. Henderson, 92 NY2d 677, 680. However, failure to satisfy the requirements of CPL § 100.40(1)(c) creates a jurisdictional defect to the criminal action. People v. Alejandro, 70 NY2d 133, 137; People v. Jones , 9 NY3d 259 , 262.
The Court emphasizes that the review of the instant motion is limited to whether or not the People's allegations as stated in the current information are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See People v. Jennings, 69 NY2d 103, 115.
A superceding information was filed in this matter on September 22, 2008. The factual portion of the information alleges, in relevant part:
". . . on or about (1) and between March 24, 2008 and April 11, 2008, at 71 Stone Avenue, County of Kings . . .
. . . and . . . on or about (2) April 8, 2008, at approximately 6:30 PM at 1251 Prospect Place, County of Kings . . .
Deponent [an Assistant District Attorney] is informed by [complainant] that, at the first above time and place, defendant did follow informant around, did approach informant when informant was alone, did hug informant, did touch informant on informant's thigh, and did whisper in informant's ear, causing informant to become alarmed and annoyed. . . .
at the second above time and place, the defendant did lean down to kiss informant on informant's mouth and that informant did turn informant's head, causing defendant to kiss informant next to informant's mouth . . .
. . . . informant's date of birth is February 18, 1993."
Penal Law § 240.26 (1) states that "A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person . . . [h]e . . . subjects such other person to physical contact, or attempts or threatens to do the same."
Defendant argues that the complaint is insufficient with regard to the charge of Harassment in the Second Degree because "[a] hug is not the physical contact the legislature intended to prohibit." Defendant's Memorandum, p. 4. Defendant further argues that although the complaint also alleges that defendant touched the complainant's thigh, "this could have been done in the course of instruction, while saying hello, while walking past someone, the mere fact of touch alone is insufficient to support the charge of Harassment or Endangering." Defendant's Memorandum, p. 4-5.
To say that the complaint merely alleges that defendant hugged the complainant or touched her thigh accidentally, or in passing, omits several additional allegations and removes the facts from their context. The allegations, if taken together, and true, describe a course of conduct over a period of two weeks which include following the complainant, approaching her when she was alone, hugging her, touching her on the thigh and whispering in her ear. Further, it is alleged that, on a separate occasion, defendant leaned toward complainant in an attempt to kiss her on the mouth. There can be no dispute that these allegations are facially sufficient. See, People v. Ostrin, 8 Misc 3d 1020A [Crim. Ct., Kings Co. 2005]. Defendant, nonetheless, asserts a more innocent interpretation of acts alleged in the information. Ultimately, the resolution of whether conduct, sufficient for pleading purposes, establishes a defendant's guilty beyond a reasonable doubt is a question for the trier of fact after analyzing the facts presented in their full context at trial. People v. Eugene, 2001 Slip Op 40011U [Crim. Ct., New York Co. 2001]; People v. Carlson, 183 Misc 2d 630, 635 [Crim. Ct., New York Co. 1999]; People v. Prisinzano, 170 Misc 2d 525, 538-539 [Crim. Ct., New York Co. 1996].
Accordingly, the Court finds the factual allegations in the instant information, alleging that defendant followed the complainant, approached her when she was alone, hugged her, touched her on the thigh, whispered in her ear, and, subsequently, attempted to kiss her, sufficient for the charge of Harassment in the Second Degree.
The charge of Endangering the Welfare of a Child is supported by these same factual allegations. Endangering the welfare of a child requires allegations that the defendant "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to [her] life or health." PL § 260.10. The statute does not require the allegation of actual harm to the child, only the knowing likelihood of such harm. People v. Simmons, 92 NY2d 892.
Additionally, the Court notes that court file documents indicate defendant was approximately 39 years old at the time of these incidents. The complainant was 15 years old.
Exposing a child to sexual contact is considered prima facie evidence of endangering the welfare of a child. People v. Valentin, 17 Misc 3d 1132 A [Crim. Ct., Kings Co. 2007]. See also, People v. Dunavin, 173 AD2d 1032 [3rd Dept. 1991]; People v. Ahlers, 98 AD2d 821 [3rd Dept. 1983]. Sexual contact, according to PL § 130.00, "means any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party." Courts have found that the mouth is an intimate part of the body, especially when used for kissing. People v. Rivera, 138 Misc 2d 570 [Sup. Ct., Bronx Co. 1988]; People v. Rondon, 152 Misc 2d 1018, 1020 [Crim. Ct., Queens Co. 1992]; People v. Valentin, supra.
In People v. Sumpter, 190 Misc 2d 115, [App Term, 1st Dept. 2001], the defendant was accused, inter alia, of attempting to kiss the complainant all over her face. The court found that had the defendant been able to kiss the complainant, this would have constituted sexual contact. Id., at 221.
"The statute does not require that gratification occur but only that the touching be for that purpose." Id., citing People v. Teicher, 52 NY2d 638, 646. Whether or not defendant was seeking sexual gratification may be inferred from his conduct. People v. Fuller , 50 AD3d 1171 [3rd Dept. 2008]; People v. Sumpter, supra. See also, People v. Powell , 19 Misc 3d 364 [Crim. Ct., Kings Co. 2008].
Defendant argues that the information alleges "innocuous behavior over a period of time of over 2 weeks" and further that the allegations "as they are charged could have occurred separately and in the context of sports, or greeting or warnings." Defendant's Memorandum, p. 3. Defendant argues that "these allegations are as likely to have an innocent interpretation as a sinister one." Id. Indeed, there may be an innocent interpretation to these allegations. This is, again, an issue is for the trier of fact to decide. People v. Jennings, supra; cit omitted. Moreover, defendant's reliance on People v. Camacho, 209 AD2d 534 [2nd Dept. 1994], is misplaced. The Camacho court considered whether the People had sustained their burden at trial, not whether they had pleaded a facially sufficient prosecutor's information. Id.
Accordingly, the Court finds the factual allegations in the instant information sufficient for the charge of Endangering the Welfare of a Child.
Defendant further argues that the information fails to allege facts that support the charge of Attempted Sexual Abuse in the Third Degree. A person is guilty of Sexual Abuse in the Third Degree under Penal Law § 130.55 when he or she "subjects another person to sexual contact without the latter's consent." A person is guilty of an attempt to commit a crime when "with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." Penal Law § 110.00.
With regard to this charge, the information specifies that defendant leaned to kiss the complainant, but the complainant turned her head, causing the defendant to kiss her next to her mouth. Defendant argues that there are no facts to support the accusation that defendant intended to kiss the complainant on her mouth and that one kiss on the complainant's cheek should not be found facially sufficient to support the charge of Attempted Sexual Abuse in the Third Degree. Defendant's Memorandum, p. 2-3. This argument relies on a flawed reading of the complaint, as well as PL § 130.55. The allegations that defendant leaned to kiss the complainant and did kiss complainant next to her mouth after she turned, if true, support defendant's intent to kiss the complainant. The allegation that complainant turned her head when defendant leaned toward her supports the element of lack of consent, which may be established directly or through circumstantial evidence. People v. Darryl M., 123 Misc 2d 723 [Crim. Ct., New York Co. 1984]; also People v. Soto, 192 Misc 2d 161, 167 [Crim. Ct., New York Co 2002].
Assuming at this stage that kissing constitutes sexual contact (see discussion infra), defendant's attempt to kiss complainant constitutes attempted sexual contact. The defendant need not have completed his objective for this to be considered an attempt, he need only have moved toward doing so. People v. Bracey, 41 NY2d 296, 300; People v. Miller , 19 Misc 3d 457 , 460[Crim. Ct., Kings Co. 2008]; CPL § 110.00. The statute under which defendant is charged merely requires a showing of attempt to subject another to sexual contact without consent, and does not require aggressive physical contact. People v. Miller, supra.; People v. Brown, 251 AD2d 694 [3rd Dept. 1998]; cit omitted. Here, the complainant's lack of consent may be inferred by the turning of her head to avoid a kiss on her mouth. Again, these allegations are sufficient for the pleading of this charge. Proof of defendant's intent and the complainant's lack of consent beyond a reasonable doubt remain issues for the trier of fact. People v. Jennings, supra; People v. Miller, supra.
Accordingly, the Court finds the factual allegations in the instant information sufficient for the charge of Attempted Sexual Abuse in the Third Degree.
Defendant's motion to dismiss the information for facial insufficiency is denied in its entirety.
This constitutes the decision and order of this Court. Dated: September 17, 2009