Appellate Advocates, Samuel Brown, Esq., for appellant.
District Attorney Kings County, (Leonard Joblove, Thomas M.
Ross, Terrence F. Heller of counsel), for respondent.
PRESENT:: MARTIN M. SOLOMON, J.P., MICHAEL L. PESCE, DAVID
from a judgment of the Criminal Court of the City of New
York, Kings County (Gilbert C. Hong, J.), rendered December
2, 2013. The judgment convicted defendant, upon a jury
verdict, of forcible touching and harassment in the second
that the judgment of conviction is affirmed.
factual part of an information charging defendant with
forcible touching (Penal Law § 130.52), sexual abuse in
the third degree (Penal Law § 130.55), and harassment in
the second degree (Penal Law § 240.26 ), alleged, in
pertinent part, that, at approximately 1:00 p.m. on November
"[A]s the informant was squatting down, the defendant
approached the informant from behind, placed the
defendant's foot between the informant's legs, and,
standing behind the informant, rubbed the defendant's
foot against the informant's vagina.
The deponent is further informed by the informant that the
defendant engaged in the above-described conduct without the
informant's consent and that it caused the informant to
become alarmed and annoyed."
jury trial, the complainant, a native of Israel, testified
that she was employed as a cashier at a Brooklyn car wash.
Defendant, also a native of Israel, was a limousine driver
and a regular customer. The complainant testified that, at
approximately 1:00 p.m. on November 6, 2011, she was at work,
organizing candy bars on the shelves below the cash register.
She bent down to reach the shelves, and her back was facing
the store. Defendant came up behind her and placed his foot
between her legs, over her pants. He moved his foot from the
front to the back, twice, rubbing her "butt and...
vagina." The complainant indicated that the incident
lasted less than a second, but it felt as if it lasted longer
because someone touched her "private area without [her]
permission." The complainant testified that defendant
had asked her out many times before the incident. She had
declined. One week before the incident, defendant had offered
to pay her to have oral sex. On another occasion, defendant
had asked her whether she shaved her private parts.
complainant further testified that there were security
cameras in the car wash. She identified a video disk of a
recording of the incident, which she had viewed on November
6, 2011. The DVD was admitted into evidence and played for
the jury. The disk contains two videos. One does not have
sound, but shows defendant come up behind the complainant and
place his foot between her legs for one or two seconds.
Defendant appears to smile immediately after the incident.
The second video contains sound. In addition to the incident,
the video depicts defendant speaking to the victim and
another cashier who was present, and after a few seconds, the
complainant can be heard shouting.
the incident, the complainant slapped defendant and told him
in Hebrew, "how dare you do something like that. This
time you really crossed the limit and I will call... the
police." Defendant replied that he was just joking. The
complainant responded, "for me it is not a joke."
Defendant apologized, trying to convince her that he was
sorry, and asked for her forgiveness. The complainant told
him to leave her alone, and get out of the car wash.
Defendant left. The complainant remained at the car wash but
was scared and shaken, and unable to work. Shortly after the
incident, a uniformed police officer came in to have his car
washed. The complainant told him what had happened. He told
her to call 911. About three hours after the incident, the
complainant called 911. Among other things, she told the
operator that she had told defendant that she could sue him.
She testified that, in Hebrew, "to sue" meant to
make a report to the police. She did not file a civil lawsuit
against defendant or hire a civil attorney.
detective met with the complainant on November 14, 2011. She
told the detective that defendant had touched her
inappropriately on her vagina, and provided him with the
surveillance videos. The detective subsequently arrested
moved to dismiss the forcible touching charge, claiming that
the People did not prove that the act was done to degrade or
abuse the victim, or to gratify his sexual desire. The
incident was a "brief one-second touch with a dress shoe
onto a clothed woman." Nor did defendant intend to
commit harassment, "which requires intent to alarm or
annoy." The People responded that defendant placed his
foot between the victim's legs, and rubbed the area of
her vagina and her buttocks intentionally, without her
consent. The complainant was embarrassed and incredibly
upset. The Criminal Court denied the motion, stating that
"terms such as sexual gratification, degrading and
abusive are subjective and up to the jury's
argued that, as the People did not present evidence that
defendant's alleged acts were degrading or abusive, the
court should charge the jury only as to the sexual
gratification aspect of forcible ...