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People v. Guez

Supreme Court of New York, Second Department

June 23, 2017

The People of the State of New York, Respondent,
v.
Doron Guez, Appellant.

          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 ELLIOT, JJ

         Appeal 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 degree.

         ORDERED that the judgment of conviction is affirmed.

         The 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 [1]), alleged, in pertinent part, that, at approximately 1:00 p.m. on November 6, 2011:

"[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."

         At a 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.

         The 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.

         After 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.

         A 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 defendant.

         Defendant 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 discretion."

         Defendant 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 ...


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