People v Hernandez

[*1] People v Hernandez 2012 NY Slip Op 51858(U) Decided on September 25, 2012 Supreme Court, Kings County Riviezzo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 25, 2012
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Francisco Hernandez, Defendant.



10479/2011



Appearances:

For the People:

Charles J. Hynes (Victoria Nunez, A.D.A.)

350 Jay Street, Brooklyn, NY 11201

For defendant:

Steven R. Fusfeld, Esq.

401 Broadway, Suite 1010, NY, NY 10013

212 226-5688

Dineen A. Riviezzo, J.

Defendant was charged by indictment with two counts of sexual conduct against a child in the first degree, and numerous other crimes, for sexually molesting his daughter over an extended period of time. This court previously reviewed the sufficiency of the Grand Jury minutes, and at that time, the court observed, sua sponte, that as to the counts charging sexual abuse in the second degree under P.L. 130.60 (2) (Counts 10, 11, 12, 13, 21, 22, 23, 24, 32, 33, 34, 35) an issue was presented as to whether those counts were multiplicitous under People v. Alonzo (16 NY3d 267, 920 N.Y.S.2d 302, 945 N.E.2d 495 [2011]). Release of grand jury minutes was ordered, as the court found that disclosure was necessary to assist it in making a determination on the issue. (CPL § 210.30[3].)

With respect to the counts charging sexual abuse in the second degree, the testimony as to the alleged acts was that the defendant engaged in the following conduct — i.e., placing penis to anus, mouth to breast, penis to vagina, and mouth to vagina — during three different time periods (April 2 to May 31, 2011 [Counts 10, 11, 12, 13]); June 1 to July 31, 2011 [Counts 21, 22, 23, 24]); and August 1 to August 31, 2001 [Counts 32, 33, 34, 35]). The entire testimony as to the events was the victim's statement, when her attention was called to the relevant time period, that, "He [defendant] put his penis to my anus, he put his penis to my vagina and he put his mouth to my breast, and he put his mouth to my vagina." For each of the these three time periods, defendant was charged with four counts of sexual abuse in the second degree, based upon the type of sexual contact described by the victim, i.e., one count based on contact consisting of defendant's placing his penis to the victim's anus, one count based on contact consisting of the placing of defendant's penis to the victim's vagina, one count based on contact consisting of the placing of defendant's mouth to the victim's breast, and one count based on contact consisting of [*2]defendant's placing his mouth to the victim's vagina.

The defendant in the present case argues that each group of four counts represents only one uninterrupted occurrence, and thus only one count of sexual abuse should have been charged for each incident. The People distinguish People v. Alonzo on the ground that there were "different methods of abuse," in that there was anal, oral and vaginal penetration. (People v. Charles, 31 Misc 3d 1246A, 934 N.Y.S.2d 36 [Sullivan Co. 2011] [indictment not multiplicitous which alleged violation of multiple provisions of the Penal Law under different theories for an incident of multiple acts of oral sex and intercourse in the victim's bedroom on May 27, 2011]).

In People v. Alonzo (16 NY3d 267, supra), defendant pinned down one victim with his body, and groped her breasts and buttocks. Defendant then threw the second victim down, and groped her breasts and buttocks also. Defendant was indicted with two counts of sexual abuse for each victim, the first alleging forcible hand-to-breast contact, the second count alleging hand-to-buttocks contact. Defendant moved to dismiss two of the four counts as multiplicitous. County Court granted the motion. The Appellate Division affirmed, finding that the conduct alleged in the dismissed counts essentially referred to the same mental state, the same act, the same course of conduct, and the same victim, as the count not dismissed. (62 AD3d 720 [2d Dept. 2009]).

The Court of Appeals also affirmed, finding that "where the evidence before a grand jury shows a single, uninterrupted attack in which the attacker gropes several parts of a victim's body, the attacker may be charged with only one count of sexual abuse." (Id at 268.) The Court held: "Penal Law § 130.65 (1) says that "[a] person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact . . . [b]y forcible compulsion." "Sexual contact" is defined as "any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire" (Penal Law § 130.00 [3]). Here, to use the words of the Appellate Division in People v Moffitt (20 AD3d 687, 690, 798 NYS2d 556 [3d Dept 2005]) (quoted by County Court below), there was "but a single, uninterrupted occurrence of forcible compulsion." It is true, as the People point out, that there were at least twoindeed probably moreoccurrences of "sexual contact." Unsurprisingly, neither victim claimed to remember exactly how often defendant removed his hand and touched her again in the course of groping her, or how often he moved a hand from one body part to another, but it is clear that this happened repeatedly. To hold that each such movement of the hand may be prosecuted as a separate crime would be contrary to common sense." (Id at 270.)

In People v Moffitt (20 AD3d 687, 690, 798 NYS2d 556 [3d Dept 2005]) , the case cited the Court of Appeals, the Third Department found that two counts of sexual abuse — one for touching the victim's genital area, and one for touching her breast — should not have been charged for each incident which constituted an "uninterrupted occurrence."

There have been, surprisingly, few cases analyzing the holding and ramifications of People v. Alonzo. Indeed, only five cases have been located citing Alonzo. In People v. Charles, different sections of the Penal Law were under consideration. In People v. Weatherby (32 Misc [*3]3d 1208A, 932 N.Y.S.2d 762 [Troy City Court 2011]), the court held that only one charge of sexual abuse was permitted where the defendant placed his hand on the victim's vagina, and then immediately placed her hand on his penis. In People v. Santiago (946 N.Y.S.2d 383, 2012 NY App. Div. LEXIS 4498 [4th Dep't 2012]), the People conceded that the fourth count of the indictment, charging sexual abuse in the first degree, must be dismissed because the evidence showed a single, uninterrupted attack in which the attacker groped several parts of a victim's body. People v. Williams (91 AD3d 679, 935 N.Y.S.2d 895 [2d Dep't 2012]) similarly involved the People's concession on appeal. In People v. Ramos (35 Misc 3d 1206A, 2012 NY Misc. LEXIS 150 [Sup. Ct., Kings Co. 2012], two counts of Endangering the Welfare of a Child were held not to be multiplicitous where they were based on separate and distinct offenses; one count alleged that the complaining witness was endangered by defendant's sexual contact with him on multiple occasions, while the other count alleged that the endangerment arose from defendant's transmission and exchange of digital images of a sexual nature with the complaining witness on multiple occasions over a period of time.

Although it is clear that where touching by hand is involved, sexual contact in the course of one incident will generally give rise only to one count of sexual abuse, none of the cited cases squarely address whether, as argued by the People, various types of sexual contact, including intercourse, should be treated differently from hand contact. P.L. § 130.60 (2) provides that a person is guilty of sexual abuse in the second degree when he or she subjects another person to "sexual contact," and such other person is less than fourteen years old. P.L. 130.00 (3) in turn defines "sexual contact" as "any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party." As the Second Department has held in People v. Johnson (102 AD2d 895, 477 NYS2d 67 [2d Dept. 1984] [penis to thigh contact]), "sexual contact does not require touching with hands."[FN1] Given this broad definition of sexual contact, various means of sexual contact, by hand or otherwise, would violate this section, and it does not appear that every sexual contact during one incident would give rise to separate counts, so long as only one uninterrupted incident is alleged.

Nevertheless, it is not necessary to definitely resolve this issue, as it is not clear that there was in fact only one uninterrupted incident. In view of the terse testimony of the complainant, the court has before it none of the particulars of the incident, and no knowledge of the length of time of each incident, or whether the conduct was interrupted or not. The court is mindful of the following admonition of the Court in Alonzo: "Other cases may not be so clear. Where the evidence reasonably permits a grand jury to find that either one or two crimes occurred, an indictment charging two should not be dismissed: When the case is tried, the court can reevaluate the evidence and decide how many crimes the trial jury should consider." (16 NY3d 267, supra at 270 - 271).

Because the bare-bones testimony provides no particulars or guidance, this court will accordingly adopt the solution propounded by the Court of Appeals, and deny the motion without prejudice to renew before the trial court. [*4]

This constitutes the order of the Court.

Sept. 25, 2012/s/

DateJ.S.C. Footnotes

Footnote 1: Other courts do in fact require hand contact. See People v. Vicaretti, 54 AD2d 236, 388 N.Y.S.2d 410 (4th Dep't 1976) (restricting offense to digital manipulation or manual handling or fondling). Presumably, the issue presented here would not arise in those jurisdictions.