People v Valdivia (Mario)

[*1] People v Valdivia (Mario) 2013 NY Slip Op 51665(U) Decided on October 11, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570890/11.

The People of the State of New York, Respondent,

against

Mario Valdivia,

OCTOBER 11, 2013 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT September 2013 Term Lowe, III, P.J., Shulman, Torres, JJ. The People of the State of New York, NY County Clerk's No. Respondent, 570890/11 -against- Mario Valdivia,Calendar No. 12-241/242 Defendant-Appellant, Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Robert M. Mandelbaum, J.), rendered November 10, 2010, convicting him, upon a plea of guilty, of two counts of forcible touching, and imposing sentence. Per Curiam. Judgment of conviction (Robert M. Mandelbaum, J.), rendered November 10, 2010, affirmed. We find unavailing defendant's challenge to the facial sufficiency of the accusatory instruments charging forcible touching (see Penal Law § 130.52). The informations — comprising the misdemeanor complaints, the victims' supporting depositions and, in one case, the supporting deposition of a police eyewitness — alleged that at specified times and inside "crowded" subway trains, defendant "press[ed]" or "thrust" his exposed, erect penis against the complainants' buttocks without their consent. These factual allegations, "given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 260 [2000]), are sufficient for pleading purposes to establish reasonable cause to believe and a prima facie case that defendant committed the crime of forcible touching during each alleged incident (see People v Guaman, 36 Misc 3d 128(A), 2012 NY Slip Op 51203[U][App Term, 1st Dept 2012], lv granted 19 NY3d 1102 [2012]; see also Matter of Najee, 26 AD3d 258 (2006); People v Guinn, 37 Misc 3d 28 [2012]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: October 11, 2013 Defendant-Appellant,

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Robert M. Mandelbaum, J.), rendered November 10, 2010, convicting him, upon a plea of guilty, of two counts of forcible touching, and imposing sentence.

Per Curiam.

Judgment of conviction (Robert M. Mandelbaum, J.), rendered November 10, 2010, affirmed.

We find unavailing defendant's challenge to the facial sufficiency of the accusatory instruments charging forcible touching (see Penal Law § 130.52). The informations — comprising the misdemeanor complaints, the victims' supporting depositions and, in one case, the supporting deposition of a police eyewitness — alleged that at specified times and inside "crowded" subway trains, defendant "press[ed]" or "thrust" his exposed, erect penis against the complainants' buttocks without their consent. These factual allegations, "given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 260 [2000]), are sufficient for pleading purposes to establish reasonable cause to believe and a prima facie case that defendant committed the crime of forcible touching during each alleged incident (see People v Guaman, 36 Misc 3d 128(A), 2012 NY Slip Op 51203[U][App Term, 1st Dept 2012], lv granted 19 NY3d 1102 [2012]; see also Matter of Najee, 26 AD3d 258 (2006); People v Guinn, 37 Misc 3d 28 [2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 11, 2013