Opinion
2012-720 NCR.
04-03-2015
The PEOPLE of the State of New York, Respondent, v. Collies SULLIVAN, Appellant.
Kent V. Moston, Legal Aid Society, Hempstead (Jeremy L. Goldberg and David Bernstein of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola (Robert A. Schwartz and Andrea M. DiGregorio of counsel), for respondent.
Kent V. Moston, Legal Aid Society, Hempstead (Jeremy L. Goldberg and David Bernstein of counsel), for appellant.
Kathleen M. Rice, District Attorney, Mineola (Robert A. Schwartz and Andrea M. DiGregorio of counsel), for respondent.
PRESENT: MARANO, J.P., TOLBERT and GARGUILO, JJ.
Opinion
Appeal from judgments of the District Court of Nassau County, First District (David McAndrews, J.), rendered March 8, 2012. The judgments convicted defendant, upon jury verdicts, of sexual abuse in the second degree and endangering the welfare of a child, respectively. The appeal from the judgments of conviction brings up for review so much of an order of the same court dated October 26, 2011 as denied, without a hearing, the branch of defendant's omnibus motion seeking to suppress identification evidence. ORDERED that so much of the order dated October 26, 2011 as denied the branch of defendant's omnibus motion seeking to suppress identification evidence is vacated and the matter is remitted to the District Court for a new determination of that branch of defendant's motion, following a hearing, in accordance with the decision herein. The appeal is held in abeyance in the interim. The District Court is directed to file its report with all convenient speed.
In September 2011, two accusatory instruments were filed charging defendant with sexual abuse in the second degree (Penal Law § 130.60[2] ) and endangering the welfare of a child (Penal Law § 260.10[1] ), respectively. In an omnibus motion, defendant moved to, among other things, preclude the People from offering any identification evidence based on an out-of-court show-up procedure since the People had failed to provide defendant with a CPL 710.30 notice of the identification. The District Court denied the motion, without a hearing, on the ground that the identification was merely confirmatory. Following a jury trial, defendant was convicted of the charged offenses. On appeal, defendant contends, among other things, that the accusatory instrument charging him with sexual abuse in the second degree is jurisdictionally defective and that the branch of his motion seeking to suppress identification evidence should have been granted outright or, in the alternative, that a hearing should have been held prior to the determination of the motion.
Defendant's contention that the accusatory instrument charging him with sexual abuse in the second degree is jurisdictionally defective because the rubbing of the complainant's chest and nipples did not constitute sexual contact within the meaning of the Penal Law lacks merit. Penal Law § 130.60(2) provides that a person is guilty of sexual abuse in the second degree “when he or she subjects another person to sexual contact and when such person is ... [l]ess than fourteen years old.” Sexual contact is defined as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party” (Penal Law § 130.00 [3 ] ). Penal Law § 5.00 states that “the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of law.” The Court of Appeals has noted that Penal Law § 5.00 “authorizes the court to dispense with hypertechnical or strained interpretations of the statute” (People v. Ditta, 52 N.Y.2d 657, 660, 439 N.Y.S.2d 855, 422 N.E.2d 515 [1981] ) and that “conduct which falls within the plain, natural meaning of a Penal Law provision may be punished as criminal” (id. ; see also People v. Watson, 171 A.D.2d 826, 827, 567 N.Y.S.2d 529 [1991] ).
As “[s]exual conduct is defined broadly” (People v. Ditta, 52 N.Y.2d at 661, 439 N.Y.S.2d 855, 422 N.E.2d 515 ; see also People v. Watson, 171 A.D.2d at 827, 567 N.Y.S.2d 529 ), we find that the rubbing of a 13–year–old boy's chest and nipples, under the circumstances described in the accusatory instrument, constitutes sexual contact within the meaning of the Penal Law. It is of no consequence that the supporting deposition only mentions the complainant's chest, whereas the accusatory instrument mentions the complainant's chest and nipples. Thus, the accusatory instrument charging defendant with sexual abuse in the second degree is not jurisdictionally defective since it, along with the supporting deposition, allege facts of an evidentiary character that establish, if true, every element of the offense charged (see CPL 100.15[3] ; 100.40[1][c]; People v. Dumas, 68 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ). We find, however, that the District Court erred in denying, without a hearing, the branch of defendant's motion seeking suppression of the identification evidence (see e.g. People v. Coleman, 60 A.D.3d 1079, 876 N.Y.S.2d 158 [2009] ; People v. Redding, 47 A.D.3d 953, 850 N.Y.S.2d 198 [2008] ). A review of the record indicates that a hearing is required in accordance with People v. Rodriguez, 79 N.Y.2d 445, 453, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992] in order to determine whether the complainant was sufficiently familiar with defendant so as to exempt the complainant's out-of-court identification of defendant from the CPL 710.30(1) (b) notice requirement (see People v. Williamson, 79 N.Y.2d 799, 800–801, 580 N.Y.S.2d 170, 588 N.E.2d 68 [1991] ; People v. Rodriguez, 79 N.Y.2d at 453, 583 N.Y.S.2d 814, 593 N.E.2d 268 ; People v. Coleman, 60 A.D.3d 1079, 876 N.Y.S.2d 158 ; People v. Redding, 47 A.D.3d 953, 850 N.Y.S.2d 198 ).
Accordingly, the matter is remitted to the District Court for a new determination, following a hearing, of the branch of defendant's omnibus motion seeking to suppress identification evidence and the appeal is held in abeyance in the interim. In view of the foregoing, we reach no other issues at this juncture.