Opinion
2018-1828 D CR and
08-19-2021
The People of the State of New York, Respondent, v. Michael H. (Anonymous), Appellant.
Dutchess County Public Defender (Jennifer Burton of counsel), for appellant. Dutchess County District Attorney (Kirsten A. Rappleyea of counsel), for respondent.
Unpublished Opinion
Dutchess County Public Defender (Jennifer Burton of counsel), for appellant.
Dutchess County District Attorney (Kirsten A. Rappleyea of counsel), for respondent.
PRESENT: TERRY JANE RUDERMAN, P.J., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ
Appeals from a judgment of the Justice Court of the Town of Wappinger, Dutchess County (Carl S. Wolfson, J.), rendered July 19, 2018, and an amended judgment of that court rendered September 6, 2018. The judgment, after a nonjury trial, adjudicated defendant a youthful offender upon a verdict finding him guilty of forcible touching, and imposed sentence. The amended judgment vacated so much of the sentence as imposed three years' probation and resentenced defendant to six years' probation.
ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further, ORDERED that so much of the appeal as is from the portion of the judgment that imposed three years' probation is dismissed as academic, as that portion of the judgment was superseded by the amended judgment; and it is further, ORDERED that the judgment adjudicating defendant a youthful offender, insofar as reviewed, and the amended judgment are affirmed.
Defendant was charged, in two different informations, with forcible touching (Penal Law § 130.52 [1]) based upon two incidents. In one incident, defendant was alleged to have squeezed the complainant's breasts (the charge at issue) and in the other incident, occurring 20 minutes earlier, of which defendant was acquitted, defendant was alleged to have touched the complainant's buttocks.
The information at issue alleged that defendant "did intentionally and for no legitimate purpose squeeze both breasts of [the complainant], without her consent and did so for his own sexual gratification." The information was supported by depositions, including one by the complainant in which she alleged that defendant
"came up to me and said 'look at those big breasts!' Then he reached out with both hands and squeezed both of my breasts twice. I told him to get off me and I pushed him away. He continued to try to put his arm around me but I kept pushing him away and telling him to leave me alone."
At a nonjury trial, the complainant testified that, on October 21, 2016, when she was 17 years old, she was walking outside on her high school track during gym class when defendant, a fellow classmate, in the presence of two other boys, touched her buttocks, that defendant and the other boys were laughing, and that defendant said that they were "just kidding." Approximately 20 minutes later, defendant squeezed her breasts twice. The complainant further testified that she told defendant to get off her, did not give defendant consent to touch her breasts, and felt "degraded" and "upset" after defendant touched her breasts.
Following the trial, defendant was acquitted of the charge based upon the allegation that defendant had touched the complainant's buttocks but was found guilty of the charge based on the allegation that he had squeezed the complainant's breasts. Defendant was adjudicated a youthful offender and was sentenced to 30 days' incarceration and three years' probation. Thereafter, the Justice Court vacated so much of defendant's sentence as imposed three years' probation, as it was an illegal sentence, and resentenced defendant to six years' probation in accordance with Penal Law §§ 60.02 (1) and 65.00 (3) (b) (ii).
On appeal, defendant argues that the accusatory instrument at issue was facially insufficient, in that the intent element was not sufficiently pleaded, and that the verdict was against the weight of the evidence.
For an information to be facially sufficient, the factual part thereof together with any supporting deposition must contain nonhearsay allegations which establish, if true, every element of the offense charged and the defendant's commission thereof (see CPL 100.40 [1] [c]; People v Dumay, 23 N.Y.3d 518, 522 [2014]; People v Kalin, 12 N.Y.3d 225 [2009]). These requirements, with the exception of a claim of hearsay, which is waived if not raised by timely motion in the trial court, are jurisdictional, and may be raised at any time (see People v Dreyden, 15 N.Y.3d 100, 102-103 [2010]; People v Kalin, 12 N.Y.3d at 228-229; People v Keizer, 100 N.Y.2d 114, 121 [2003]; People v Casey, 95 N.Y.2d 354, 360 [2000]; People v Alejandro, 70 N.Y.2d 133, 135 [1987]).
Penal Law § 130.52 (1) provides, insofar as is relevant to the allegations in the information, that 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 gratifying the actor's sexual desire." Intent may be inferred from the act itself (see People v Hatton, 26 N.Y.3d 364 [2015]). Here, the information together with the supporting depositions provide sufficient factual allegations leading to an inference that defendant forcibly touched the complainant "for no legitimate purpose" and "for the purpose of gratifying [defendant's] sexual desire" (Penal Law § 130.52 [1]).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 N.Y.3d 342, 348-349 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Romero, 7 N.Y.3d 633, 644-645 [2006]; People v Mateo, 2 N.Y.3d 383, 410 [2004]; People v Bleakley, 69 N.Y.2d 490, 495 [1987]; People v Wu, 63 Misc.3d 159 [A], 2019 NY Slip Op 50867[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]). This court weighs the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony. This court must then determine, based on the credible evidence, whether a different result would not have been unreasonable (see Romero, 7 N.Y.3d 633; Bleakley, 69 N.Y.2d at 495). Upon our independent review, we find that the guilty verdict was not against the weight of the evidence.
Accordingly, the judgment adjudicating defendant a youthful offender, insofar as reviewed, and the amended judgment are affirmed.
RUDERMAN, P.J., GARGUILO and EMERSON, JJ., concur.