The opinion of the court was delivered by: Andrew M. Engel, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The Defendant was originally charged, by Information, with Sexual Abuse in the Third Degree, in violation of Penal Law § 130.55. On October 8, 2008 the People filed a Prosecutor's Information superceding the original Information, [See: CPL § 100.50(2)], containing the original charge and adding counts including Forcible Touching, in violation of Penal Law § 130.52 and Endangering the Welfare of a Child in violation of Penal Law § 260.10.(1). The Defendant was re-arraigned on these charges on October 14, 2008. The Defendant now moves for an order dismissing the new counts, pursuant to CPL §§ 170.30(1)(a), 170.35(1)(a), 100.20 and 100.40, directing compliance with Defendant's discovery demand or precluding the items demanded at the time of trial, directing a hearing pursuant to People v. Sandoval, 34 NY2d 371, 357 NYS2d 849 (1974); and, granting the Defendant leave to make any and all motions which might reasonable follow the People's compliance with the Defendant's demands. The People have not submitted opposition to the Defendant's motion.
To be facially sufficient a Prosecutor's Information "must contain the name of the local criminal court with which it is filed and the title of the action, and must be subscribed by the district attorney by whom it is filed. Otherwise it should be in the form prescribed for an indictment, pursuant to section 200.50, and must, in one or more counts, allege the offense or offenses charged and a plain and concise statement of the conduct constituting each such offense." CPL § 100.35*fn1 In the case of a Prosecutor's Information superceding an original Information, as is presently before the court, the charges in the new accusatory instrument must also be "supported, pursuant to the standards prescribed in subdivision one of section 100.40, by the allegations of the factual part of the original information and/or any supporting depositions which may accompany it." CPL § 100.50(2)
Pursuant thereto, a Prosecutor's Information will be facially sufficient where the "allegations of the factual part of the [original] information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged ...; and [n]on-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof."CPL § 100.40(1)(b) and (c). See: People v. Moore, 5 NY3d 725, 800 NYS2d 49 (2005); People v. Thomas, 4 NY3d 143, 791 NYS2d 68 (2005); People v. Alejandro, 70 NY2d 133, 517 NYS2d 927 (1987); CPL § 140(1)(b) The factual allegations should not be given an overly restrictive or technical reading, People v. Casey, 95 NY2d 354, 717 NYS2d 88 (2000); People v. Baumann & Sons Buses, Inc., 6 NY3d 404, 813 NYS2d 27 (2006), but must be sufficient to 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) 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. Henderson, 92 NY2d 677, 685 NYS2d 409 (1999); People v. Porter, 75 AD2d 901, 428 NYS2d 63 (2nd Dept. 1980)
Count 2 of the Prosecutor's Information alleges that on or about July 13, 2008, at approximately 2:00 a.m., at 25D Old Mill Court, Rockville Centre, the Defendant, in violation of Penal Law § 130.52 "subjected the victim to sexual contact without the latter's consent [by] grab[bing] onto and attempt[ing] to pull off 14 YEAR OLD [complainant's] pants as she told him No' and as she held her pants up, he then pumped his erect penis onto her vaginal area as she told him "Stop" throughout[.]"
The Defendant seeks dismissal of this count, arguing that the supporting deposition upon which it is based "fails to allege in non-hearsay, non-conclusory manner that the defendant forcibly touched' the complainant, which is an element of the crime charged." (Papa Affirmation 10/30/08, ¶15) Specifically, the Defendant points out that the supporting deposition does not allege that the Defendant "squeezed, grabbed or pinched" the complainant. Relying on In re Randolph P., 254 AD2d 94, 678 NYS2d (1st Dept. 1998); In the Matter of Lawrence S., 127 AD2d 772, 512 NYS2d 166 (2nd Dept. 1987); In the Matter of Marcus M., 287 AD2d 505, 731 N.Y.S. 2nd 222 (2nd Dept. 2001); and, People v. Graydon, 129 Misc 2d 265, 492 NYS2d 903 (Crim. Ct. NY Co. 1985) the Defendant further argues that, while the facts as alleged in the supporting deposition support the charge of Sexual Abuse in the Third Degree, they do not support a charge of Forcible Touching. The Defendant also relies on People v. Nuruzzaman, 8 Misc 3d 356, 678 NYS2d 622 (1st Dept. 1998) for the proposition that forcible touching requires "something more than mere touching," (Papa Affirmation 10/30/08, ¶22) equating a pat on the buttocks with the Defendant's conduct in the matter sub judice.
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." As can be seen, forcible touching has five (5) elements: (1) intent; (2) the absence of any legitimate purpose; (3) some level of force; (4) the touching of an individual's sexual or other intimate parts; (5) done to degrade or abuse such other person, or to gratify the defendant's sexual desire.
The complainant's supporting deposition, upon which the charge of forcible touching is based, alleges, in pertinent part:
On July 13, 2008 at about 2:00AM I was sleeping at my cousin Taddy's house which is located at 25D Old Mill Court in Rockville Centre, NY. I was lying on my right side on the living room floor wearing pajama pants and shirt. ... I woke up when I felt two hands tug at the waistband of my pajama pants. I immediately turned over onto my back and grabbed my pajama pants. I saw my cousin Leon Taylor lying on the left side of me. I said stop.' Leon said It's going to feel good - let me stick it in once.' I said No.' He then climbed on top of me and I could feel his hard penis grinding against my vagina. My pajama bottoms were still on, but he continued pumping his hard penis against my vagina. I kept saying Stop' about four or five times and I didn't yell because I didn't want to get him in trouble. He then got off me and walked out of the room. I curled up into a ball and lay there feeling mad and angry.
The court finds that these non-hearsay allegations support each element of the charge of forcible touching. In re Randolph P., supra ., and the other cases relied upon by the Defendant, are inapposite to the case before this court, as each of those cases only addressed the sufficiency of the evidence presented with regard to the charge of Sexual Abuse in the Third Degree. None of those cases involved the charge of Forcible Touching. Contrary to the Defendant's argument, the charges of Sexual Abuse in the Third Degree and Forcible Touching are not mutually exclusive. While "the primary conduct prohibited in Sexual Abuse in the Third Degree and Forcible Touching is identical: an unwanted touching of one's intimate body parts[,] Forcible Touching contains an additional alternative intent element and requires a level of force not required in the sexual abuse statute, which raises the level of the primary act. For this reason, forcible touching is an aggravated form of sexual abuse." People v. Soto, 192 Misc 2d 161, 745 NYS2d 880 (Crim.Ct. NY Co. 2002) The fact that the touching in Randolph P., supra ., and the other cases relied upon by the Defendant, involved the touching of the victims' vagina, and in some cases a touching involving the defendant's erect penis, supported a finding of Sexual Abuse in the Third Degree, does not preclude a finding of Forcible Touching, if the requisite additional elements are properly stated. See: People v. ...