People v Carollo

[*1] People v Carollo 2022 NY Slip Op 51411(U) Decided on November 30, 2022 County Court, Oneida County Bauer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2022
County Court, Oneida County

The People of the State of New York, Plaintiff/Respondent,

against

Ronald S. Carollo, Defendant/Appellant.



Docket No. CR-895-21, MC 2022-000009


Scott D. McNamara, Oneida County District Attorney (Evan Esswein, Esq. of counsel) for the People

John G. Leonard, Esq. (Leonard Criminal Defense Group, PLLC, of Rome, New York) for Defendant Robert L. Bauer, J.

DECISION AND ORDER

Defendant appealed from a judgment of conviction after he was found guilty of Forcible Touching [Penal Law (PL) §130.52(1)] and Endangering the Welfare of a Child [PL §260.10(1)] after a bench trial in Rome City Court (Hon. Gregory J. Amoroso).

On appeal, he contended that that the local court erred in failing to dismiss the Information which charged him with Forcible Touching, as the allegations were facially insufficient to support the claim. He also argued that upon this Court's reversal and dismissal of the Forcible Touching conviction, a new trial is required on the Endangering the Welfare of a Child charge.

The People argued that defendant was duly prosecuted and convicted by a jurisdictionally valid information. They further argued that, in the event this Court finds the forcible touching information defective, defendant has not demonstrated the kind or quality of spillover prejudice which would warrant a new trial on the endangering charge.

Background

Defendant was charged in March 2021 in Rome City Court with Forcible Touching [PL [*2]§130.52(1)] and Endangering the Welfare of Child [PL §260.10(1)][FN1] .

According to the supporting deposition of the thirteen-year-old victim, she frequently visited defendant's home as she was friends with his family.

The victim stated that when she left defendant's home, she would give defendant's wife a hug and hug defendant, too, because he would make her feel bad if she didn't. The victim specifically alleged: "When he hugs me, he would slide his hands down to my butt and touch my butt with both hands. He just rests them there, he does not squeeze." (r. 9).

Defendant filed an omnibus motion seeking, in relevant part, an order to dismiss the charge of Forcible Touching pursuant to CPL §170.30(l)(a) & (f) and §170.35(l)(a), as the conduct alleged by the victim was insufficient as a matter of law to support the charge.

The People filed their answer and defendant filed a reply.

On June 7, 2021, Rome City Court issued a decision and order finding, in part, that the Information charging the defendant with Forcible Touching was sufficient and his motion to dismiss same was denied (see People v. Carollo, 72 Misc 3d 841 [Rome City Court 2021]).

Following a bench trial in November 2021, defendant was convicted of both counts. In March 2022, defendant was sentenced to a term of probation for 6 years with a stay-away order of protection.

On April 5, 2022, this judgment was stayed by order of this Court pending the resolution of this appeal.

Defendant's Argument

Defendant's first argument is that the Information, coupled with the victim's supporting deposition, were insufficient to establish that defendant applied "some level of pressure" to the victim's sexual or intimate parts.

Defendant claimed that "'[f]acial sufficiency, by definition, limits the Court's analysis to the four corners of the accusatory instrument' People v. Thomas, 4 NY3d 143, 146, (2005).When the factual portion of the Information, together with any accompanying supporting deposition and viewed in the light most favorable to the People, fails to establish every element of the offense charged, the Information is jurisdictionally defective and must be dismissed. People v. Casey, supra; People v. Alejandro, supra." (Defendant's brief p 3)

He further argued:

The Court in Guaman, held "when done with the relevant mens rea, any bodily contact involving the application of some level of pressure to the victim's sexual or intimate parts qualifies as a forcible touch within the meaning of Penal Law §130.52." People v. Guaman, 22 NY3d at 684. (emphasis supplied).The Court of Appeals in People v. Hatton, 26 NY3d 364 [2015], removed any doubt that forcible touching requires the application of pressure. "The information's assertion that defendant "smacked the buttocks" of the complainant, more than adequately alleges that defendant applied the statutorily required pressure to effectuate contact with a part of complainant's body commonly accepted within society as sexual or intimate in nature. [*3](emphasis supplied)
...It is beyond dispute that the Information of [Investigator] Ciccone does not allege the application of the "statutorily required pressure", as he simply alleged "touched". (Defendant's brief pgs 5-6)

Using Guaman, supra, and Hatton, supra, to support his argument, defendant claimed the lower court's analysis of the facial sufficiency of the Information was flawed:

In review of the lower court decision, it is respectfully submitted that the Court made several errors in its analysis. First, the lower court stated "the Court must undertake an analysis of whether or not the application of a certain amount of "pressure", if any, is required to support the charge of forcible touching." (r, 63) (emphasis supplied). It is the Appellant's position that Guaman ("some level of pressure") and Hatton ("statutorily required pressure") removed all doubt the Information must allege pressure. Secondly, the lower court's reliance on People v Powell, 19 Misc 3d 364, 369 [Crim Ct 2008], "touching which occurred was 'done lightly', it is sufficient for facial sufficiency purposes" is misplaced as it predates the requirements set down in Guaman and Hatton, (r. 63). Thirdly, the lower court's comparison of People v. Bartlett, 89 AD3d 1453, 1454 [4th Dept. 2011] stating "it has been found that merely rubbing and pressing up against a victim is sufficient to meet statutory requirements" is equally misplaced, (r. 63). (Defendant's brief p 7)

Defendant also relied upon People v. Zaragoza, 195 AD3d 522 [1st Dept. 2021], which held:

The complaint was legally insufficient to support the forcible touching charge; therefore, with respect to that charge only, the prosecutor's information was jurisdictionally defective (People v. Alejandro, 70 NY2d 133, 136 [1987]). The actus reus of forcible touching (Penal Law §130.52) is "any bodily contact involving the application of some level of pressure to the victim's sexual or intimate parts" (People v. Guaman, 22 NY3d 678, 683—84 [2014]). Here, the complaint alleged that defendant touched the victim's thighs and genitals by reaching under her skirt, but it failed to allege any facts consistent with the application of pressure (see e. g. People v. House, 45 Misc 3d 814, 817—818 [Ithaca City Court 2014]). [internal citations omitted]

As a result, defendant claimed that when the four corners of the accusatory are examined by this Court, the Information with the supporting deposition were insufficient to establish that defendant applied "some level of pressure" to the victim's sexual or intimate parts.

As such, defendant requested that this Court reverse his forcible touching conviction and dismiss the Information as legally insufficient (Defendant's brief p 10).

Defendant's second argument is that a new trial should be granted on the endangering conviction as the "spillover" effect from the tainted forcible touching conviction influenced the lower court's decision in a meaningful way regarding the endangering conviction.

"Whether an error in the proceedings relating to one count requires reversal of convictions on other jointly tried counts is a question that can only be resolved on a case-by-case basis, requiring the court to evaluate the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome. People v. Morales, 20 NY3d 240 [2012]; People v. Allen, 32 NY3d 611 [2018]." (Defendant's brief p 10).

Defendant also argued that, because he was charged with both forcible touching and endangering, this hampered his ability to better negotiate during the plea-bargaining process and influenced his decision to waive his jury trial.

People's Argument

The People argue that defendant was duly prosecuted and convicted by a jurisdictionally valid information as the Information described the minimal level of pressure or friction to qualify as a "forcible touch" within the meaning of PL §130.52, as well as binding precedent, specifically, People v. Guaman 22 NY3d 678 and People v. Hatton, 26 NY3d 364 (People's answer p 5).

The People argue:

Eschewing any meaningful discussion of Guaman, which applied a "broad construction of the statutory language" of Penal Law 130.52 to reject a similar claim of facial insufficiency (22 NY3d 678, 684 [2014]), defendant contends his conduct, as alleged by the information, do not make out the crime of forcible touching, because he "touched" but "did not squeeze" the buttocks of the child (Appellant's Brief at 6). This argument, however, is predicated upon an overly technical and restrictive reading of the information and should be rejected by this Court...."So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v. Casey, 95 NY2d 354, 360 [2000]). (People's answer pgs 5-7)

The People also argued that "the factual allegations easily satisfy the facial sufficiency standard for the actus reus elements of the offense" (Hatton, supra at 369) as the Information alleged the following:

On [December 27, 2020], while at XXX Pleasant Ave, in the City of Rome, County of Oneida, State of New York, the above said defendant did commit the offense of Forcible Touching when he intentionally and for no legitimate purpose touched the buttocks of a 13-year-old female victim (DOB XX/XX/07) over her clothing with both hands. (R8) (People's answer p 8)

The Information was based on the supporting deposition of the victim in which she stated:

When [defendant] hugs me, he would slide his hands down to my butt and touch my butt with both hands. He just rests them there[;] he does not squeeze. (R9) (People's answer p [*4]8)

The People argue that while defendant emphasizes the latter part of this statement that he "did not squeeze" the victim's buttocks, "defendant was not prosecuted, in the abstract, for where he 'rest[ed]' his hands (see Defendant's Brief at 6). He was prosecuted for the intentional and unnecessary act of 'sliding' them from the child's back to her buttocks, and then keeping them there while she was embraced in a hug. It is these two acts - the 'sliding' of the hands and their placement during the 'hug'- which must be analyzed to determine whether defendant's conduct, as alleged in the information, qualifies as a forcible touch" (People's answer p 9).

The People rely upon the definition of "hug" to advance their argument:

To "hug" is, by its very definition, to "press (someone) tightly in one's arms" (see Merriam-Webster. (n.d.). Hug. In Merriam-Webster.com dictionary. Retrieved August 16, 2022, from https://www.merriam-webster.com/dictionary/hug). (People's answer p 10)

With respect to the second argument, the People contend that, in the event this Court finds the Information defective, defendant has not demonstrated the kind or quality of spillover prejudice which would warrant a new trial on the endangering charge.

Discussion

Penal Law §130.52, forcible touching states, in relevant part: A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose (1) forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexual desire. For the purposes of this section, forcible touching includes squeezing, grabbing or pinching.

Further, as set forth in the New York Criminal Jury Instruction Penal Law §130.52(1), "Forcibly touching another includes squeezing, grabbing, pinching, rubbing, or other bodily contact involving the application of some level of pressure to the victim's sexual or intimate parts".

The Court has reviewed the parties' papers and considered their arguments. Based upon a review of the Information, together with the victim's supporting deposition, the Court finds that the lower court did not err in finding that the allegations were facially sufficient to support the Forcible Touching Information.

While this Court notes, per defendant's argument, that the lower court initially questioned whether or not the application of pressure was necessary, in light of the recently developed case law regarding that issue, the lower court ultimately reached the proper decision; "Upon the plain reading of the statute, it appears that more than touching is required as specific examples of forcible touching, as set forth in the law, are 'squeezing, grabbing or pinching'" (Carollo, supra at 845).

Moreover, per Casey, supra, at 630:

The procedural requirements for the factual portion of a local criminal court information are, simply: that it state "facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3]; see, CPL 100.40 [1] [a]); that the "allegations of the factual part ... together with those of any supporting depositions ... provide reasonable [*5]cause to believe that the defendant committed the offense charged" (CPL 100.40 [1] [b]); and that the "[n]on-hearsay allegations [of the information and supporting depositions] establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40 [1] [c]; see, CPL 100.15 [3]).So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see, People v. Jacoby, 304 NY 33, 38-40; People v. Knapp, 152 Misc 368, 370, affd 242 App Div 811; People v. Shea, 68 Misc 2d 271, 272; see also, People v. Allen, 92 NY2d 378, 385; People v. Miles, 64 NY2d 731, 732-733). [emphasis added] (see also, People v. NT, 49 Misc 3d 1214(A) [Town of Wells, Hamilton County 2015])

Further, as held in Guaman, supra, at 684, this Court agrees with the People that "'forcibly touches' is not restricted in the way defendant advocates. Indeed, [the Court] understand[s] the examples set out in the statute (i.e. 'squeezing, grabbing or pinching') as intended by the legislature to signal a low threshold for the forcible component of this crime's actus reus. Accordingly, [as held by the Court of Appeals], when done with the relevant mens rea, any bodily contact involving the application of some level of pressure to the victim's sexual or intimate parts qualifies as a forcible touch within the meaning of Penal Law §130.52. The allegation in the information here easily meets this test." [emphasis added]

Based upon the facts in this case, in contrast to the scant details mentioned in Zaragoza, supra, (where "the complaint alleged that defendant touched the victim's thighs and genitals by reaching under her skirt, but it failed to allege any facts consistent with the application of pressure") and as argued by the People, the incident did not involve fleeting contact between the adult defendant and the thirteen-year-old victim. The touching of her buttocks was not surrounded in a vacuum, devoid of any other bodily contact. Similarly, the entire incident should not be parsed out and examined at each point that bodily contact was made by defendant with respect to a review of the Information. Notably, "the actus reus for this crime differs from the actus reus for third-degree sexual abuse, which may only entail bringing a bodily part into fleeting contact with another's sexual or intimate parts" (Guaman, supra, at 684).

Indeed, the victim alleged that defendant first physically contacted her through a hug, and then, once he was engaged in the embrace, slid his hands down the young girl's back until he placed and rest them upon her buttocks. Based upon the facts in this case, "defendant could certainly have caused the victim 'non-trivial physical discomfort'" (Id.).

As such, after a fair and not overly restrictive or technical reading, the factual allegations in this case gave defendant notice sufficient to prepare a defense and were adequately detailed to prevent him from being tried twice for the same offense (see Casey, supra; Guaman, supra).

In light of the foregoing, defendant's motion that this Court reverse his forcible touching conviction and dismiss the Information as legally insufficient is denied. Further, defendant's motion for a new trial on the endangering charge as a result of spillover prejudice from the tainted forcible touching conviction is denied as moot.

It is hereby ORDERED that the judgment so appealed from is affirmed.

This shall constitute the Decision and Order of this Court.

ENTER.
HON. ROBERT L. BAUER
ONEIDA COUNTY COURT JUDGE
November 30, 2022 Footnotes

Footnote 1: Although not part of this appeal, defendant was also charged in Rome City Court on similar charges involving a separate victim. Ultimately, the People subsequently moved to dismiss both charges informing the Court that the second victim could not recall the incident.