People v Rhodes (Darryl)

[*1] People v Rhodes (Darryl) 2014 NY Slip Op 51293(U) Decided on August 22, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 22, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
12-201

The People of the State of New York, Respondent,

against

Darryl Rhodes, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Lynn R. Kotler, J.), rendered November 30, 2011, convicting him, upon a plea of guilty, of forcible touching, and imposing sentence.

Per Curiam.

Judgment of conviction (Lynn R. Kotler, J.), rendered November 30, 2011, affirmed.

In view of the defendant's knowing waiver of his right to prosecution by information, the facial sufficiency of the accusatory instrument must be assessed under the standard required of a misdemeanor complaint (see People v Dumay, ___ NY3d ___, 2014 NY Slip Op 04038 [2014]). So viewed, the accusatory instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of forcible touching (see Penal Law § 130.52), the offense to which defendant ultimately pleaded guilty. In this connection, the factual portion of the accusatory instrument alleged, inter alia, that, at a specified time and street location, defendant approached the victim and "grabbed" her left breast, and that the victim "did not consent to the defendant touching her in any way." Contrary to defendant's contention, the allegation that the victim did not consent to any sexual contact was sufficient, at the pleading stage, to support the lack of consent element of the charged offense (see People v Guaman, 36 Misc 3d 126[A], 2012 NY Slip Op 51203[U][App Term, 1st Dept 2012], affd 22 NY3d 678 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: August 22, 2014