People v N.T.

[*1] People v N.T. 2015 NY Slip Op 51619(U) Decided on November 10, 2015 Justice Court Of The Town Of Wells, Hamilton County Hobbs, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2015
Justice Court of the Town of Wells, Hamilton County

People of the State of New York

against

N.T., Defendant



xxxx



For the People:

James E. Conboy, Esq., Montgomery County District Attorney, Special Prosecutor

For Defendant:

James C. Knox, Esq., of counsel, E. Stewart Jones, Hacker Murphy, LLP
Gary C. Hobbs, J.

The Defendant, N.T., through his attorney, James C. Knox, Esq., having filed an omnibus motion seeking dismissal of the charges of Forcible Touching [Penal Law § 130.52] and Endangering the Welfare of a Child [Penal Law § 260.10] and upon reading and filing of the Notice of Motion and affirmation of James C. Knox, Esq., in support of said motion, and the Reply Affirmation of James E. Conboy, Esq., Special Prosecutor, in opposition to said motion, together with a review of all documents annexed in support and opposition to said motion, the Court renders the following decision and order.

BACKGROUND FACTS

The defendant is charged in this Court with the misdemeanors of Forcible Touching [Penal Law § 130.52] and Endangering the Welfare of a Child [Penal Law § 260.10]. Based on the misdemeanor complaints and the supporting deposition of the alleged victim, it is alleged that, on or about August 12, 2015, at approximately 10:30 p.m., the defendant (who is 16 years old) did intentionally place his hands down the pants of the alleged victim, a 12 year old child, without her consent, and did touch and insert his fingers into the victim's vagina.

Here, according to the supporting deposition of the alleged victim, on the day of the alleged incident, the defendant and alleged victim were together in a camper watching videos. The defendant began kissing the victim's neck and face. The defendant then "grabbed under my bra . . . I then tried to move over but he just moved over to me." The victim alleges that the defendant then "grabbed my hand and put it down on his pants. He put my hands around his [*2]penis. I moved my hand away and he put it back so I said we should go to sleep." The victim further alleges that the defendant "put his hands down my pants under my underwear but I told him to go to sleep and I kept moving over." The alleged victim further states, "He was putting his fingers inside of me, but then I went to the bathroom and he went back to his bed after I shut the door to where my bed was."

MOTION TO DISMISS IN THE FURTHERANCE OF JUSTICE

CPL 170.40(1) provides that a court may dismiss an accusatory instrument if "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice [.]" The statute lists the following ten factors which the court should consider, "to the extent applicable[:]"

(a) the seriousness and circumstances of the offense;

(b) the extent of harm caused by the offense;

(c) the evidence of guilt, whether admissible or inadmissible at trial;

(d) the history, character and condition of the defendant;

(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

(g) the impact of a dismissal on the safety or welfare of the community;

(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;

(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; and

(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

A motion to dismiss in the interest of justice is not the appropriate mechanism for a defendant's assertion of his innocence. See: People v. Figueroa, 164 Misc 2d 814, 625 N.Y.S.2d 839 (Crim. Ct., Kings County 1995); People v. Prunty, 101 Misc 2d 163, 420 N.Y.S.2d 703 (Crim. Ct., Queens County 1979). The court may consider "the evidence of guilt whether admissible or inadmissible at trial." C.P.L. 170.40(1)(c). However, "[i]t is the evidence that is available to the People that is contemplated" by that statutory provision, i.e., that the court may only consider in a CPL 170.40 motion the evidence that the People are likely to introduce. People v. Figueroa, 164 Misc 2d 814, 625 N.Y.S.2d 839, quoting, People v. Prunty, 101 Misc 2d 163, 420 N.Y.S.2d 703 (Crim. Ct., Queens County 1979). The community's trust in the justice system would be undermined by the court preventing the "full airing of the proof available to both sides" at trial. People v. Figueroa, 164 Misc 2d 814, 625 N.Y.S.2d 839.

On a motion to dismiss in the interests of justice, the burden is on the Defendant to establish "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in injustice." See: People v. Boulet, 88 Misc 2d 353, 355, 388 N.Y.S.2d 250 (City Ct., Rochester, 1976); People v. Verardi, [*3]158 Misc 2d 1039, 1042, 602 N.Y.S.2d 318 (Crim. Ct., Kings Cty, 1993).

In addition, it is well settled that the court's "discretionary authority to dismiss ... in furtherance of justice ... should be exercised sparingly and only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution ... would be an injustice." People v. Gordon, 20 Misc 3d 133 (Sup. Ct., App.Term, 2008), citing, People v. Candelaria, 50 AD3d 913, 913 [2nd Dept. 2008]. See also: People v. Jenner, 39 AD3d 1083, 835 N.Y.S.2d 501 (3d Dept. 2007).

In this case, the Defendant has failed to demonstrate the required "compelling factor" that would necessitate dismissal in the furtherance of justice. The fact that the defendant may be a "good kid," a "dedicated student," a "high school athlete" and has had no prior contact with the criminal justice system, while certainly a factor for this Court to consider, is not sufficient to demonstrate the required "compelling factor" in this case. [Knox affidavit, pg.4, ¶'s 13-14].

Here, the crimes alleged against the defendant are extremely serious crimes, involving alleged forcible touching with digital penetration against a 12 year old child. Contrary to the defendant's assertions, the factual allegations, if true, do not indicate that the defendant and victim engaged in "heavy petting" that was consented to by the victim. The victim's supporting deposition indicates that the defendant forced the victim to touch his penis by grabbing the victim's hand and placing it on his penis. When the victim removed her hand, the defendant allegedly grabbed her hand again and placed it on his penis. The victim alleged tried to get away from the defendant's advances by physically moving away from the defendant, telling the defendant to go to sleep, telling the defendant that he needed to work in the morning, and finally by leaving and going to the bathroom. The defendant allegedly put his hand down the victim's pants and under her underwear, without the victim's consent.[FN1] The harm to the victim from the defendant's alleged conduct is reported to be "enormous" with the victim being "deeply traumatized" resulting in "counseling related to the alleged offense." [Conboy affidavit, pg.1, ¶6].

The alleged evidence of the defendant's guilt does not support a dismissal of the charges. The potential evidence includes emails allegedly sent by the defendant to the victim which, if proven, certainly could be considered to be inculpatory. The remaining statutory factors cited by the Defendant have been considered and are found to be without merit. The Defendant's motion to dismiss in the furtherance of justice is DENIED.

MOTION TO DISMISS FOR FACIALLY INSUFFICIENCY

The standard for the facial sufficiency of a criminal information is well settled. In order to be sufficient, the factual portion of an information "must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." [CPL § 100.15(3)]. In addition, under CPL 100.40 (1) an information is sufficient on its face when: "(a) It substantially conforms to the requirements prescribed in section 100.15"; and "(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and "(c) non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof."

Paragraphs (b) and (c) of CPL § 100.40 (1), when read in conjunction, places the burden on the People to make out their prima facie case for the offense charged in the text of the criminal information, when read together with any supporting depositions. People v. Jones, 9 NY3d 259, 261 (2007). The failure to assert sufficient non-hearsay factual allegations in the Information is a jurisdictional defect. People v Alejandro, 70 NY2d 133, 134-135 (1987). Thus, unless the accusatory instrument alleges or is based upon reasonable cause to believe defendant committed the offense, the court has no authority to enter an order that restrains defendant's liberty, as this is a basic constitutional prerequisite. CPL § 100.40, Practice Commentaries, Professor Peter Preiser, (2012), citing, People v. Dumas, 68 NY2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986]; County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991).

However, 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, the information should be given a fair and not overly restrictive or technical reading. See: People v. Konieczny, 2 NY3d 569, 780 N.Y.S.2d 546, 813 N.E.2d 626 (2004); People v. Casey, 95 NY2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000).

The requirement of non-hearsay factual allegations is satisfied by either a deponent's direct, firsthand observations, or by hearsay evidence that would be admissible at trial under some exception to the rule against hearsay. See: People v. Casey, 95 NY2d 354, 361, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000]; New York Pretrial Criminal Procedure § 3.7, at 109 [7 West's NY Prac. Series 1996]; People v. Belcher, 302 NY 529, 534—535, 99 N.E.2d 874 [1951]).

In People v. Allen, 99 NY2d 378, 385 (1998), the Court of Appeals held that, at the pleading stage, all that is required are factual allegations that are sufficiently evidentiary in character and which tend to support the charges. In assessing the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People. However, the court is not required to abandon common sense or the significance of the alleged conduct. See: People v. Gibble, 2 Misc 3d 510, 512 (Criminal Ct., City of New York, 2003); People v. Gonzales, 184 Misc 2d 262 (App. Term, 1st Dept., 2004).

In the present case, the defendant is charged with the crime of Forcible Touching [Penal Law § 130.52] and Endangering the Welfare of a Child [Penal Law § 260.10]. With respect to the charge of Forcible Touching, the three (3) essential elements are that the defendant (1) forcibly touched the sexual or other intimate parts of the victim for the purpose of degrading or abusing him/her, or for the purpose of gratifying the defendant's sexual desire; (2) did so intentionally and for no legitimate purpose; and (3) did so without the consent of the victim in that he/she did not expressly or impliedly acquiesce to the defendant's conduct. [CJI § 130.52]. The defendant asserts that there is no non-hearsay factual allegation supporting the claim that the defendant's alleged sexual touching of the victim was "forcibly" done. In making this assertion, the defendant cites to the definition of "forcible compulsion" and asserts that a complaint under Penal Law § 130.52 is insufficient unless it contains non-hearsay allegations of either (1) a use of physical force or (2) a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped. [Knox affidavit, pg.8, ¶42].

Contrary to the defendant's assertion Penal Law § 130.52 does not require proof of "forcible compulsion." People v Serrano, 5 Misc 3d 509 (Dist. Ct., Nassau County, 2004)(Forcible compulsion, i.e. the compulsion of the complaining witness through the use of some power, threat, or violence, is not a necessary element of the crime of forcible touching).

Instead, the Penal Law § 130.52 merely requires proof of some "forcible touching" by the defendant. [CJI § 130.52]. "Forcible touching" of another person has been determined to include the "squeezing, grabbing or pinching" of another person's sexual or other intimate parts. Penal Law § 130.52. See also; People v. Boykin, 127 AD2d 1004, 513 N.Y.S.2d 310 (4th Dept. 1987); People v. Darryl M., 123 Misc 2d 723, 735, 475 N.Y.S.2d 704 (Criminal Court, NY County, 1984).

The Court of Appeals has provided a broad definition of what constitutes a forcible touch in People v. Guaman, 22 NY3d 678, 985 N.Y.S.2d 209, 8 N.E.3d 324 (2014). The Court of Appeals explained that "forcible" touching need not involve a touching which causes pain or discomfort, but it suffices that the force employed be applied with both "pressure and friction." Guaman at 683, 985 N.Y.S.2d 209, 8 N.E.3d 324. Thus, the Court of Appeals held that "any bodily contact involving the application of some level of pressure to the victim's sexual or intimate parts qualifies as a forcible touch...." Id. at 684.

Moreover, New York's Criminal Jury Instructions states that "[f]orcibly 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." CJI § 130.52 (emphasis added). So, contrary to the defendant's assertions, Penal Law § 130.52 simply does not require non-hearsay factual allegations sufficient to demonstrate "forcible compulsion" as defined in the Penal Law [i.e.; use of physical force or threatened use of physical force]. Instead, to be sufficient, the complaint and supporting depositions must contain non-hearsay allegations that establish the essential elements of Penal Law § 130.52, which includes the element of a [*4]"forcible touch" [i.e.; non-hearsay factual allegations that the defendant squeezed, grabbed, pinched, rubbed or had other bodily contact involving that application of some level of pressure to the victim's sexual or intimate parts]. CJI § 130.52; People v. Guaman, 22 NY3d 678, 985 N.Y.S.2d 209, 8 N.E.3d 324 (2014).

In the present case, the criminal complaint, when read together with the supporting deposition of the alleged victim, does adequately support, with non-hearsay factual allegations, all of the essential elements of Penal Law 130.52. See; People v. Gowdy, 38 Misc 3d 143(A), 2013 WL 632057 (App.Term, 1st Dept.2013)(affirming Defendant's conviction and holding that Defendant's conduct in reaching under the victim's clothing and "rubbing" his hand "up and down the split of her buttocks"—was "forcible" within the meaning of the forcible touching statute); People v. Valdivia, 41 Misc 3d 127(A), 2013 WL 5628729 (App.Term, 1st Dept.2013)(affirming Defendant's conviction and holding allegations that at specified times and inside crowded subway trains, Defendant "pressed" or "thrust" his exposed, erect penis against the complainants' buttocks without consent was forcible); People v House, 45 Misc 3d 814, 818 (City Court, City of Ithaca, 2014)(the victim's allegation that defendant put his hand up complainant's shirt and touched her breast was sufficient, in prosecution for forcible touching, to supply the element of a purpose of degrading or abusing the alleged victim, or, for the purpose of gratifying the actor's sexual desire).

The defendant's motion to dismiss for facial insufficiency is denied.[FN2]

MOTION TO PRECLUDE OR COMPEL DISCOVERY

The defendant moves this Court for an order seeking that the People provide disclosure as required under the CPL or, in the alternative, that the People be precluded from introducing evidence that was not disclosed. The People assert that they have provided all discovery as required under CPL § 240.20, and have provided a date and time for defense counsel to review, inspect and copy the People's stated or disclosed evidence. Upon review of the motion and response to the motion, the defendant's motion to preclude is denied as being moot, in so far as the People appear to have adequately provided responses to the defendant's discovery demands, and the information provided adequately conforms to the requirements of CPL § 240.20. However, the People are reminded of their continuing obligation to use due diligence to provide additional discovery to the defendant as required by law, and any failure to adequately disclose discoverable items to defense counsel will result in an appropriate sanction, which may include preclusion of any undisclosed item(s).

[*5]

Motion for Brady Materials

The defendant's motion for disclosure of Brady materials is granted to the extent that, in exercising its obligation of due diligence, should the People obtain or discover any exculpatory materials, then the People are required to promptly disclose such exculpatory materials to the defendant, and any failure to adequately disclose Brady materials to defense counsel will result in an appropriate sanction, which may include a dismissal of the charges against the defendant.

Motion for Rosario Materials

The defendant's motion for disclosure of Rosario (179 AD2d 442) materials is granted, to the extent that the People are directed to provide such Rosario materials within the time requirements of CPL § 240.45.

Motions Relating to Sandoval, Ventimiglia and Molineux

The defendant's motion seeking to obtain notice from the People of any proposed trial issues pursuant to Ventimiglia or Sandoval or Molineux and their respective progeny is granted, to the extent that the People are directed to provide such notice to the defendant no later than three (3) business days prior to the trial date of this action.

PRECLUSION OF STATEMENTS MADE BY THE DEFENDANT TO LAW ENFORCEMENT

The defendant moves to preclude any statements obtained by law enforcement. Here, defense counsel asserts that neither he nor the defendant has never been served with a notice of any statements pursuant to CPL 710.30. In response, the People submit that they have fully complied with the defendant's discovery demands. However, the People fail to address the defendant's assertion that a CPL 710.30 notice was never served. Upon a review of the Court's file, there appears to have been no CPL 710.30 notice served on the defendant or defense counsel.

Where the People intend to introduce at trial evidence of a statement made by defendant to law enforcement officers and/or of any identification procedure used, the People must, no later than 15 days after arraignment, serve defendant with a notice of intention to use such evidence and, if they fail to serve timely notice or demonstrate good cause for untimely service, may not introduce such evidence in their case in chief. CPL § 710.30. See also; People v. Degrijze, 194 AD2d 801, 599 N.Y.S.2d 634, cert. den., 82 NY2d 753, 603 N.Y.S.2d 994, 624 N.E.2d 180 (2d Dept. 1993).

CPL 710.30 is a notice statute intended to facilitate a defendant's opportunity to challenge before trial the voluntariness of statements made by him and/or the legality of the identification process used by law enforcement. People v Lopez, 84 NY2d 425, 428 (1994), citing, People v. O'Doherty, 70 NY2d 479, 484, 522 N.Y.S.2d 498, 517 N.E.2d 213; People v. Greer, 42 NY2d 170, 179, 397 N.Y.S.2d 613, 366 N.E.2d 273; People v. Huntley, 15 NY2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179; People v Lopez, 84 NY2d 425, 428 (1994).

There are only two exceptions to this 15 day notice requirement: (a) the 15—day time provision may be waived for good cause and (b) the notice may be excused if the defendant has in fact moved for suppression. CPL 710.30(2),(3). In Lopez, the Court of Appeals found that the CPL 710.30 Notice that was served on the defendant was insufficient where the notice informed defendant Lopez that the People intended to offer oral and written statements but failed to specify the time and place the oral or written statements were made and of the sum and substance of those statements. People v Lopez, 84 NY2d 425, 428 (1994). Thus, to be sufficient, the notice must advise of the time and place the statement was made and must recite the sum and substance of what was said by the defendant. A full copy of the defendant's statement does not need to be supplied, but the defendant's alleged statement must be described sufficiently so that the defendant can identify it. CPL § 710.30, Practice Commentaries by William C. Donnino, citing, People v. Lopez, 84 NY2d 425, 618 N.Y.S.2d 879, 643 N.E.2d 501 (1994).

In addition, it is irrelevant that the People's failure to satisfy the requirements of 710.30 did not result in prejudice to the defendant. Instead, the statutory remedy for the People's failure to comply with the statute is preclusion, and the issue of prejudice or lack of prejudice simply plays no part in the court's analysis. People v Lopez, 84 NY2d 425, 428 (1994), citing, CPL 710.30(3); People v. O'Doherty, 70 NY2d 479, 486—487 (1987).

Finally, contrary to the People's assertion, the failure to serve a CPL 710.30 notice or the service of an insufficient CPL 710.30 Notice cannot be cured by discovery. People v Lopez, 84 NY2d 425, 428 (1994).

Based on the foregoing, the defendant's motion to preclude the People from using, in their case-in-chief, any statements obtained from the defendant by law enforcement is granted.

b>

Leave to Make Further Motions

The defendant's motion seeking leave to make further motions is denied pursuant to CPL § 255.20, and it is further

ORDERED, that this matter is scheduled for appearances on November 17, 2015 at 6:00 p.m. for further proceedings.

Dated: November 10, 2015

at Glens Falls, New York

_________________________

Hon. Gary C. Hobbs

Acting Justice,

Town Court, Town of Wells

ENTER. Footnotes

Footnote 1:The People correctly note that the alleged victim, being only 12 years old, lacks the capacity to consent. Penal Law § 130.05(3)(a). However, contrary to the defendant's assertion, there is evidence in the victim's supporting deposition that she verbally and physically attempted to stop the defendant's alleged sexual contact.

Footnote 2:The defendant's motion to dismiss the charge of Endangering the Welfare of a Child as being facially insufficient was similarly based on the claim that there were no facts alleging on a firsthand basis that demonstrate that the crime of Forcible Touching was committed by "forcible compulsion." [Knox affidavit, pg. 9, ¶ 47]. Since the motion to dismiss the charge of Endangering the Welfare of a Child is based on the same erroneous legal analysis, the defendant's motion is denied.