Opinion
Docket No. CR- 02578-22
09-18-2023
People of the State of New York, v. Antonio Jose De Oliveira, Defendant.
Westchester County District Attorney Mount Vernon Branch Douglas J. Martino, Esq. Martino & Weiss Attorney for Defendant
Unpublished Opinion
Westchester County District Attorney Mount Vernon Branch Douglas J. Martino, Esq. Martino & Weiss Attorney for Defendant
Lyndon D. Williams, J.
A bench trial was held in this proceeding charging the defendant with one count of Forcible Touching (PL § 130.52(1)), one count of Sexual Abuse in the Third Degree (PL § 130.55) and one count of Unlawful Imprisonment in the Second Degree (PL § 135.05).
The defendant is charged with the above offenses for allegedly following the complainant into a bathroom at the restaurant where she worked, closing the door behind them and then grabbing her face with his hands while trying to kiss her.
At trial, the complainant SM testified for the prosecution. Defense moved for a trial order of dismissal. The motion was denied. Defendant then testified on his own behalf.
The credible evidence and testimony presented at the trial established that on August 6, 2022 at approximately 6:20 pm, the complainant, SM, was working as a cashier and server at the Chalanas restaurant located at 105 West Lincoln Avenue in Mount Vernon, New York. SM went to the restroom inside the restaurant which was normally used by the employees. After she had entered the bathroom, she heard someone knocking on the door. She thought it was another employee so she opened the door. When she opened the door, the defendant was there and he grabbed her, pushed her inside the bathroom and tried to kiss her. SM testified that the defendant grabbed her face with both of his hands, pulled her closer to him and tried to kiss her. She covered her mouth with her hand and told him "No, I'm married and there are cameras." The defendant then closed the bathroom door. The defendant blocked the door, which was the only way out of the bathroom. The defendant pushed SM against the wall while pulling her closer as he tried to kiss her. He held her arms so that she couldn't cover her face. Defendant stated that he "wanted a kiss, just a kiss." SM stated that the defendant kept insisting on kissing her, which she continued to resist, and then he finally opened the door and left.
SM testified that she had known the defendant for approximately eight (8) months as he was a frequent customer of the restaurant. SM further testified that she did not have a relationship with the defendant and that she only knew him from the restaurant. She further testified that the defendant had tried to kiss her once before when she was trying to get a case of beer. He had offered to help her with the case of beer, she declined his help and then the defendant attempted to kiss her. She told him "No."
Security camera footage from the restaurant which covers the bathroom area was entered into evidence as People's Exhibit "1". The video shows SM enter the bathroom and close the door behind her. Moments later the defendant is seen walking to the bathroom and knocking on the door. SM opens the door and defendant proceeds to step into the bathroom and grab SM's face and appears to try and kiss her. SM can be seen covering her mouth and moving her head from side to side. The defendant then closes the bathroom door behind him. A review of the video shows that approximately forty-one (41) seconds passes from the time the defendant enters the bathroom until he leaves. Seven still frame photos from the security camera video footage were also entered into evidence as People's Exhibits "2" through "6".
Defendant testified on his own behalf. Defendant testified that he is a divorced father of two adult children and that he lives in Pelham, New York. Defendant stated that he knew SM for six years prior to the date of the alleged incident and that they had a friendly social relationship. Defendant testified that he and SM talked about their personal lives, and even hung out at a BBQ for her birthday together with her boyfriend. Defendant stated that she once told him that she would go to the beach with him. Defendant acknowledged that he tried to develop a romantic relationship with SM and that he had previously asked her for a kiss when he was helping her move some boxes. He stated that she told him no because there were video cameras present but that she never indicated that she was offended by his attempt to kiss her. Defendant admitted that on August 6, 2022 he followed SM into the bathroom and asked her if he could kiss her. Defendant testified that SM told him that there were cameras present and therefore, refused to kiss him. Defendant stated that he did not actually kiss her because she said that there were cameras present. Defendant testified that he then apologized to her three times and left the bathroom. Defendant indicated that he thought she liked him and that is why he asked for a kiss.
A person is guilty of Forcible Touching pursuant to PL § 130.52(1) when "such person intentionally, and for no legitimate purpose: 1. 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.." A person is guilty of Sexual Abuse in the Third Degree (PL § 130.55) "when he or she subjects another person to sexual contact without the latter's consent." Sexual contact is defined broadly as "any touching of the sexual or other their intimate parts of a person...for the purpose of gratifying sexual desire of either party." (PL § 130.00(3)). When determining whether a complainant has been subjected to sexual contact of an "intimate part", a court may take into consideration the manner and circumstances of the touching. People v Dunkley, 79 Misc.3d 703 (Sup Ct NY Cty 2023); People v Sene, 66 A.D.3d 427 (1st Dept 2009); People v Graydon, 129 Misc.2d 265 (Crim Ct NY Cty 1985). The statutes do not limit the proscribed conduct to certain anatomical parts of the body. Many courts have found that zones of the body generally considered non-erogenous in nature constitute intimate parts given the circumstances surrounding their contact. Dunkley, supra (feet were intimate body parts); Sene, supra (neck was intimate body part); People v Belfrom, 124 Misc.2d 185 (navel was intimate body part); People v Flores, Dkt. No. CR-019486-19NY (Sup Ct NY Cty Sept. 5, 2019)(ankle was intimate body part); Graydon, supra (leg was intimate body part). It is the intimacy of the behavior that governs whether the conduct is prohibited not the specific anatomical part of the body touched.
The credible testimony established that the defendant intentionally and forcibly grabbed SM's face for the purpose of trying to kiss her for his own sexual gratification because he found her attractive. The defendant physically restrained SM by grabbing her arms and her face and repeatedly attempted to kiss her on the mouth. SM struggled with the defendant, covered her mouth with her hands, and kept moving her head so that the defendant could not kiss her. She also told him "No." As such, it is clear that SM did not consent to the defendant's conduct when he repeatedly attempted to kiss her.
Given the nature and circumstances of the encounter, the Court finds that SM's face is an intimate body part and that the defendant forcibly touched SM's face and subjected her to sexual contact without her consent when he followed her into a small bathroom, closed the door, grabbed her face and repeatedly tried to kiss her all while she was stating "No". Based upon the evidence presented and after assessing the testimony of the witnesses, the Court finds that the People demonstrated beyond a reasonable doubt that the defendant engaged in the course of conduct alleged by the complainant. Accordingly, the Court finds the defendant guilty of Forcible Touching and Sexual Abuse in the Third Degree.
With respect to the count of Unlawful Imprisonment in the Second Degree the Court finds that the defendant cannot lawfully be found guilty of Unlawful Imprisonment in the Second Degree as such a finding is precluded by the merger doctrine. A person is guilty of Unlawful Imprisonment in the Second Degree "when he restrains another person." (PL § 135.05). However, under the doctrine of judicial merger, an unlawful imprisonment or kidnapping that is incidental to and inseparable from the commission of another crime merges with such other crime. People v James, 114 A.D.3d 1202 (4th Dept. 2014); People v Major, 142 A.D.2d 603 (2nd Dept 1998). In determining whether the merger doctrine applies herein, "our guiding principle is whether the defendant's restraint of the victim was so much a part of another substantive crime that the substantive crime could not have been committed without such acts constituting the unlawful imprisonment and that independent criminal responsibility may not be fairly attributed to them. People v McEathron, 86 AD915 (2011).
In the case at bar, SM credibly testified that the defendant closed and locked the bathroom door behind him as he physically restrained her arms and blocked the door with his body while he attempted to kiss her. However, the defendant's actions in blocking her from exiting the bathroom and restraint of her person was intertwined and concurrent with his forcibly grabbing her and trying to kiss her. As such, although the defendant did briefly restrain SM in the bathroom, said action was part and parcel of the defendant's other crimes. Moreover, the entire encounter from the time the defendant entered the bathroom until he left was only forty-one (41) seconds. Any restriction of SM's movements was wholly incidental to the simultaneous commission of the Forcible Touching and Sexual Abuse in the Third Degree. Accordingly, the Unlawful Imprisonment in the Second Degree count merged with the Forcible Touching and Sexual Abuse in the Third Degree counts and the count of Unlawful Imprisonment is dismissed.
After the nonjury trial, the Court finds the defendant guilty of Forcible Touching and Sexual Abuse in the Third Degree.
This constitutes the Decision and Order of This Court.