Opinion
2008NA002121.
Decided May 13, 2009.
Hon. Kathleen Rice, Nassau County District Attorney, by Jesse Aviram, ADA.
Ryan L. Brownyard, Esq, of Keith A. Lavallee, Esq., P.C., Attorney for Defendant.
The Defendant is charged, by information, with two (2) counts of Forcible Touching, in violation of Penal Law § 130.52 and one (1) count of Public Lewdness, in violation of Penal Law § 245.00. The Defendant now moves for an order, pursuant to CPL § 710.30(1)(b), suppressing any testimony regarding the identification of the Defendant, or, in the alternative directing that a hearing be held pursuant to U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967); and for an order, pursuant to CPL §§ 170.30, 170.35, 100.15 and 100.40, dismissing the accusatory instruments as facially insufficient. The People oppose the motion.
FACIAL SUFFICIENCY
The information will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 NY2d 927, 425 NYS2d 56 (1979), and a factual part containing "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]" CPL § 100.15(3) based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which "provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information;" People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987); CPL § 100.40(4)(b) and, if true, establish every element of such offense, People v. Moore , 5 NY3d 725 , 800 NYS2d 49 (2005); People v. Thomas , 4 NY3d 143 , 791 NYS2d 68 (2005) "Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.20 Additionally, "the burden [is] on the People to make out their prima facie case for the offense charged in the text of the information." People v. Jones , 9 NY3d 259 , 848 NYS2d 600 (2007); See also: People v. Casey, 95 NY2d 354, 717 NYS2d 88 (2000); People v. Allen, 92 NY2d 378, 681 NYS2d 216 (1998) Such a showing is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Swamp, 84 NY2d 725, 622 NYS2d 472 (1995); People v. Porter, 75 AD2d 901, 428 NYS2d 63 (2nd Dept. 1980)
Forcible Touching
The information for Count 1 alleges that on January 11, 2009, at approximately 2:15 a.m., at 2562 Sunrise Highway, Bellmore, New York, a premises known as the Effin Grovin Bar, the Defendant, in violation of Penal Law § 130.52, "did intentionally, and for no legitimate purpose, forcibly touch the sexual or other intimate parts of another person for the purpose of degrading or abusing such other person; or for the purpose of gratifying the actor's sexual desire[; and] did intentionally grab the buttocks of the victim, Marissa Gasparri, for no legitimate purpose and without permission." The complainant's supporting deposition alleges, in pertinent part, that, at the above mention time and place, the Defendant "did take his penis out of his pants and exposed himself to me. He, Scott, Giffin, then urinated on my leg and my friend Vincent Curan. Prior to Scott urinating on me he did grab my buttocks without my permission and he was screaming at me." The supporting deposition of Jennifer L. Mihovich, an eyewitness, similarly alleges, in pertinent part, that she observed the complainant the leaning over a table when she observed "this described guy come up to [the complainant] from behind and lean towards [the complainant] very closely . . . and saw that he held his pants open and had his penis completely out. He had his penis on [the complainant's] backside and was urinating on [the complainant] back."
The information for Count 3 similarly alleges that on December 18, 2008, between the hours of 12:00 a.m and 2:00 a.m., at 4019 Hempstead Turnpike, Bethpage, New York, a premises known as Mr. Beery's, the Defendant, in violation of Penal Law § 130.52, ""did intentionally, and for no legitimate purpose, forcibly touch the sexual or other intimate parts of another person for the purpose of degrading or abusing such other person; or for the purpose of gratifying the actor's sexual desire[; and] did intentionally grab the buttocks of the victim, Marissa Gasparri, for no legitimate purpose and without permission." The complainant's supporting deposition annexed thereto alleges, in pertinent part, that the Defendant "approached me and started a conversation with me. He asked me what I do for a living. I told him that I was a gymnastics coach. He then said to me, You must be limber?' He then placed one of his hands on y buttocks and squeezed my buttocks. I did not give Scott J. Giffin permission to squeeze my buttocks and want him prosecuted for it."
The Defendant seeks dismissal of these counts, arguing that the informations are completely devoid of any allegations demonstrating that his grabbing of the complainant's buttocks was done to degrade or abuse her, or to gratify his sexual desire. In opposing this branch of the Defendant's motion the People argue that this element of the charge of Forcible Touching may reasonably be inferred from the descriptions of the Defendant's alleged conduct as set froth in the supporting depositions. Penal Law § 130.52 provides: "A person is guilty of forcible touching when such person 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. For the purposes of this section, forcible touching includes squeezing, grabbing or pinching." The court finds that the non-hearsay allegations of the complainant and an eyewitness, as set forth hereinabove, support each element of the charge of forcible touching. The plain language of Penal Law § 130.52 makes clear that "grabbing" is an "exeplar[] by the legislature of [an] action[] involving the requisite use of physical force to establish forcible' touching. . . ." People v. Serrano , 5 Misc 3d 509, 785 NYS2d 281 (Dist.Ct. Nassau County 2004); See also: People v. Soto, 192 Misc 2d 161, 745 NYS2d 880 (City Crim.Ct.NY Co. 2002) It has also been recognized that a "victim's buttocks may constitute sexual or other intimate parts' (citations omitted)." People v. Watson, 281 AD2d 691, 721 NYS2d 700 (3rd Dept. 2001); See also: People v. Felton, 145 AD2d 969, 536 NYS2d 340 (4th Dept. 1988) lv. den. 73 NY2d 1014, 541 NYS2d 769 (1989) Morevoer, "[b]ecause the question of whether a person intended to obtain sexual gratification generally presents a subjective inquiry, the sexual gratification component of the offense may properly be inferred from the perpetrator's conduct itself ( see, People v. Beecher, 225 AD2d 943, 944-945, 639 NYS2d 863; People v. Watson, 281 AD2d 691, 721 NYS2d 700)." People v. Sumpter, 190 Misc 2d 115, 737 NYS2d 219 (App.Term First Dept. 2001); See also: People v. Fuller , 50 AD3d 1171 , 854 NYS2d 594 (3rd Dept. 2008) lv. den. 11 NY3d 788, 866 NYS2d 614 (2008); In re Keisha McL., 261 AD2d 341, 691 NYS2d 428 (1st Dept. 1999); People v. Pinkoski, 300 AD2d 834, 752 NYS2d 421 (3rd Dept. 2002) The same is true of the alternative element involving conduct intended to degrade or abuse another person, particularly where, as here, the Defendant's alleged conduct included, in one instance, grabbing the complainant's buttocks, while commenting on her "limber" body, and in another instance, grabbing the complainant's buttocks, urinating on her and screaming at her in a public place, in front of other bar patrons. Viewing these non-hearsay allegations in a light most favorable to the People, People v. Martinez, 16 Misc 3d 1111 (A), 847 NYS2d 898 (Table), (Dist.Ct. Nassau Co. 2007); People v. Delmonaco , 16 Misc 3d 526 , 837 NYS2d 869 (Dist.Ct. Nassau Co. 2007); People v. Mendelson , 15 Misc 3d 925 , 834 NYS2d 445 (Dist.Ct. Nassau Co. 2007), and without giving them an overly restrictive or technical reading, People v. Baumann Sons Buses, Inc. , 6 NY3d 404 , 813 NYS2d 27 (2006) they sufficiently provide a first hand account of the alleged incident establishing each of the elements of Forcible Touching. As such they clearly serve the purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense. People v. McDermott, 69 NY2d 889, 515 NYS2d 225 (1987); People v. McGuire, 5 NY2d 523, 186 NYS2d 250 (1959)
Accordingly, that branch of the Defendant's motion which seeks to dismiss the charge of Forcible Touching is denied.
Public Lewdness
The same is true of that branch of the Defendant's motion seeking to dismiss the charge of Public Lewdness, which motion is denied.
The Defendant, relying on People v. McNamara, 78 NY2d 626, 578 NYS2d 476 (1991) erroneously argues that the information charging the Defendant with Public Lewdness is insufficient on its face because it "fail[s] to set forth that the actions of the defendant were observable in a public place with the intent to be observed." [emphasis in original] ( Brownyard Affirmation 3/20/09, ¶ 13) The Defendant either misunderstands or misapplies the court's holding in McNamara, id.
Penal Law § 245.00 provides: A person is guilty of public lewdness when he intentionally exposes the private or intimate parts of his body in a lewd manner or commits any other lewd act (a) in a public place, or (b) in private premises under circumstances in which he may readily be observed from either a public place or from other private premises, and with intent that he be so observed. As can be seen, the statute is essentially divided into two (2) distinct parts, those involving acts committed "(a) in a public place" and those committed "(b) in private premises." It is well recognized that "it does not matter in determining whether a place is a public place' whether the defendant engaged in the prohibited conduct with an intent to be observed; an intent to be observed is not an element of the crime defined in subdivision (a)." Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, p. 207 Consistent with this recognition, and contrary to the Defendant's application of People v. McNamara, supra., the Court of Appeals explicitly held: [t]he placement of the phrase with intent that he be so observed' after subdivision (b) rather than at the start of the section indicates that intent to be observed is required only in cases involving private premises, not public places. The structure of the section thus tends to contradict respondents' claim that lewd conduct is not performed in a public place' unless the actor intends to be observed or has some other culpable mental state regarding observation by others. [emphasis in original] See also: People v. Darryl M, 123 Misc 2d 723, 475 NYS2d 704 (Crim.Ct. NY Co. 1984) ["if defendant intentionally exposes his genitals . . ., there is every reasonable expectation that he will be observed and that such offensive conduct should be proscribed, whether or not he intended to be observed while committing the act."]; People v. Gibble , 2 Misc 3d 510, 773 NYS2d 499 (Crim.Ct. NY Co. 2003) [The evil at which the statute is directed is the actor's display, not his intent to display. Thus, an accused's intent to be observed engaging in the proscribed conduct need not be pleaded or proved in a prosecution under subdivision a of the statute."]
Based upon the foregoing, the court finds that the allegations in the supporting depositions to the effect that the Defendant exposed his penis, urinated on the complainant, another patron in a bar and the floor and was "shaking it all around" ( Mihovich Supporting Deposition 1/11/09) "establish prima facie that defendant's acts were committed in a public place within the meaning of PL § 245.00(a)." People v. Davis, 164 Misc 2d 89, 624 NYS2d 353 (Crim.Ct. NY Co. 1994) [defendant in public restroom manipulated his naked erect penis in public view]; See also: Matter of Jeffrey V., 185 AD2d 241, 586 NYS2d 18 (2nd Dept. 1992) [respondent's exposing, grabbing and waving his penis at complainants would have constituted public lewdness]
SUPPRESS IDENTIFICATION OR WADE HEARING
Noting that the eyewitness' supporting deposition makes no mention of the name of the Defendant and that the complainant's supporting depositions do not state "how complainant identified the defendant[,]" ( Brownyard Affirmation 3/20/09, ¶ 5) the Defendant seeks suppression of any identification testimony or, in the alternative, a hearing to determine the issue. Noting that there was no police arranged identification procedure in this matter, the People oppose this branch of the Defendant's motion.
CPL § 710.20(6) provides, in pertinent part: Upon motion of a defendant who . . . (b) claims that improper identification testimony may be offered against him in a criminal action, a court may, under circumstances prescribed in this article, order that such evidence be suppressed or excluded upon the ground that it: (6) Consists of potential testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, which potential testimony would not be admissible upon the prospective trial of such charge owing to the improperly made previous identification of the defendant by the prospective witness. CPL § 710.60(3) provides, in pertinent part, that "[t]he court may summarily deny the motion if: (a) [t]he motion papers do not allege a ground constituting a legal basis for the motion[.]" Such is the case in the matter presently before the court.
"The due process concerns underlying the notice provisions of [CPL] 710.30 are implicated whenever identification procedures come about at the deliberate direction of the State (citations omitted)." People v. Bello, 219 AD2d 657, 631 NYS2d 714 (2nd Dept. 1995); See also: People v. Gomez , 60 AD3d 782, 874 NYS2d 582 (2nd Dept. 2009) Consequently, "the purpose of a Wade hearing is to test identification testimony for taint arising from official suggestion during police-arranged confrontations between a defendant and an eyewitness" ( People v. Gissendanner, 48 NY2d 543, 552, 423 NYS2d 893, 399 NE2d 924; People v. Newball, 76 NY2d 587, 591, 561 NYS2d 898, 563 NE2d 269).'" People v. Dixon, 85 NY2d 218, 623 NYS2d (1995); See also: People v. Gee, 99 NY2d 158, 753 NYS2d 19 (2002); People v. Vera, 235 AD2d 509, 653 NYS2d 360 (2nd Dept. 1997) Neither notice of identification nor a Wade hearing are required in the case of a spontaneous identification by witnesses, People v. Pritchard, 208 AD2d 568, 617 NYS2d 47 (2nd Dept. 1994), identification resulting from happenstance, People v. Alvarenga , 25 AD3d 560 , 806 NYS2d 416 (2nd Dept. 2006), or identification procedures initiated by witnesses, People v. Flores, 232 AD2d 654, 648 NYS2d 1008 (2nd Dept. 1996); People v. Samuels, 162 AD2d 559, 556 NYS2d 747 (2nd Dept. 1990)
In the matter sub judice there is no suggestion that the police were in any way involved in the complainant's identification of the Defendant. As the Defendant acknowledges, the complainant's supporting deposition of January 11, 2009 states that she had met the Defendant on a prior occasion, at which time it is alleged he also grabbed her buttocks. Additionally, the Defendant acknowledges that the eyewitness has not identified the Defendant; nor is it claimed that either of them participated in any sort of identification procedure. As such, there is no basis upon which to grant a Wade hearing. As indicated, "[t]he mere demand for a hearing by the defendant does not automatically trigger the right to a hearing (citations omitted)[,] People v. Lopez, 180 AD2d 486, 580 NYS2d 22 (1st Dept. 1992), except "where there is a real issue of identification predicated upon police-arranged confrontations between a defendant and an eyewitness, typically involving the use of line ups, show ups or photographs, for the purpose of establishing the identity of the criminal actor' ( People v. Gissendanner, 48 NY2d 543, 423 NYS2d 893, 399 NE2d 294)." Matter of Leo T., 87 AD2d 297, 451 NYS2d 147 (1st Dept. 1982)
Under the circumstances presented herein, "the in-court identification of defendant by the complainant[ ] [or the eyewitness], based upon [their] viewing of defendant at the scene of the crime . . ., was not subject to a motion to suppress under CPL 710.20(6) (citations omitted)." People v. Kemp, 112 AD2d 320, 491 NYS2d 769 (2nd Dept. 1985) Their in-court identification of the Defendant will "not deprive [the Defendant] of a fair trial because the defense counsel is able to explore weaknesses and suggestiveness of the identification in front of the jury (citations omitted)." People v. Morales, 228 AD2d 704, 644 NYS2d 976 (2nd Dept. 1996) lv. den. 88 NY2d 1070, 651 NYS2d 414 (1996); See also: People v. Medina, 208 AD2d 771, 617 NYS2d 491 (2nd Dept. 1994) lv. den. 84 NY2d 1035, 623 NYS2d 191 (1995)
Accordingly, this branch of the Defendant's motion is denied in its entirety.
This constitutes the decision and order of the court.