Opinion
No. 570475/10.
2012-06-27
The PEOPLE of the State of New York, Respondent, v. Luis GUAMAN, Defendant–Appellant.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Robert M. Mandelbaum, J.), rendered October 22, 2010, convicting him, upon a plea of guilty, of forcible touching, and imposing sentence.
Present: LOWE, III, P.J., HUNTER, Jr., JJ.
PER CURIAM.
Judgment of conviction (Robert M. Mandelbaum, J.), rendered October 22, 2010, affirmed.
We find unavailing defendant's challenge to the facial sufficiency of the accusatory instrument charging forcible touching ( seePenal Law § 130.52). The information—comprising the misdemeanor complaint and the victim's supporting deposition—alleged that at a specified time and inside a designated subway station defendant rubbed his “groin area” and exposed penis against the victim's buttocks without the victim's consent. These factual allegations, “given a fair and not overly restrictive or technical reading” (People v. Casey, 95 N.Y.2d 354, 360 [2000] ), are sufficient for pleading purposes to establish reasonable cause to believe and a prima facie case that defendant committed the crime of forcible touching ( see Matter of Nejee A., 26 A.D.3d 258 [2006],lv denied7 N.Y.3d 703 [2006];see also People v. Pardew, 20 Misc.3d 129[A], 2008 N.Y. Slip Op 51383[U] [2008 App Term, 1st Dept], lv denied11 N.Y.3d 792 [2008] ). At the pleading stage, the sworn allegation that the victim did not consent to any sexual contact is “sufficiently evidentiary in character” (People v. Allen, 92 N.Y.2d 378, 385 [1998] ) to support the lack of consent element of the charged crime ( seePenal Law § 130.05[1][lack of consent in forcible touching prosecution results from “any circumstances ... in which the victim does not expressly or impliedly acquiesce in the actor's conduct”] ).
I concur.