People v Sandoval

[*1] People v Sandoval 2009 NY Slip Op 52683(U) [26 Misc 3d 1207(A)] Decided on December 30, 2009 Criminal Court Of The City Of New York, New York County Nervo, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2009
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Sergio Sandoval, Defendant.



2009NY059716



The People were represented by Alex Spiro, Assistant District Attorney, New York County and Matthew Hawkins, The Legal Aid Society, New York County.

Frank P. Nervo, J.

Defendant moves to dismiss the information as facially isufficient.

The complaint, deemed an information on November 10, 2009, subsequent to the People filing a corroborating affidavit on August 3, 2009, initially charged defendant with a violation of Penal Law §130.55, sexual abuse in the third degree. The People added the charge of Penal Law §130.52, forcible touching, on October 10, 2009.

Although defendant's motion, filed prior to the People adding the additional charge, addresses only the sexual abuse charge, the court will treat the motion as one to dismiss the forcible touching charge.

The complaint, signed by the police officer who witnessed the events that took place in a subway car, alleges that he observed the defendant, standing behind a woman, place his hands on a woman's buttocks and then press his groin area against her buttocks. The complaint refers to the woman as "the informant". The woman's supporting deposition states that she read the complaint and that the facts in it "are attributed to me and are true." The woman's identity is protected by Civil Rights Law § 50-B; therefore, the court will continue to refer to her as the woman.

Defendant argues that the sexual abuse allegation is facially insufficient, as it fails to [*2]allege that defendant is not married to the woman. He next contends that the complaint does not state that the informant mentioned in the complaint is the woman, and therefore a supporting deposition is needed from the informant. He argues that absent this second supporting deposition, the complaint was not properly converted to an information. Finally, defendant argues that the facts alleged do not establish that the contact was " for the purpose of gratifying sexual desire." Penal Law §130.00(3).

The absence of an allegation that the parties were not married to each other is not fatal ( People v. Alexis, 14 Misc. 3rd 978). Moreover, even if such an allegation may be necessary in some cases, it is not in this one. The events occurred on a subway train. Defendant approached the woman from behind. Logically, the court can infer, without speculating, that defendant was not attempting to engage in a privileged touching; rather he was making a surreptitious advance. The court, under these circumstances, need not draw the "fatuous" assumption that the parties may have been married. (see People v. Naylor, 196 AD2d 320, 322)

Defendant's argument that an additional supporting deposition is required is without merit. A logical reading of the complaint leads to the conclusion that the informant and the woman are the same person. Moreover, the supporting deposition unequivocally establishes that the woman is the person mentioned in the complaint.

Finally, the allegations establish a prima facie case under both statutes defendant is charged with violating. ( People v. Soto, 192 Misc 2d 161; People v. Serrano, 5 Misc. 3rd 509. It was unnecessary to set forth the allegation of sexual gratification. In any event, sexual gratification is a subjective determination that may be inferred from the nature of the acts and the circumstances under which they were committed. ( People v. Beecher, 225 AD2d 943, 944; People v. Rodriguez, 1 Misc 3d 8). In this case, the court may infer that defendant's acts of touching the woman's buttocks with his hand and groin was done for the purpose of sexual gratification.( People v. Beecher, id.)

Accordingly, it is

ORDERED that the motion to dismiss is denied.

This constitutes the decision and order of the court.

Dated: December 30, 2009

ENTER:

________________________

JCC