On or about March 3, 2021, the defendant was charged with one count of Endangering the Welfare of a Child, in violation of Penal Law §260.10(1) and one count of Forcible Touching in violation of Penal Law 130.52(1) as a result of an alleged incident which occurred on or about August 14, 2020 in the City of Rome. These charges are under docket CR-00894-21and involve a twelve-year-old alleged victim. The defendant also stands charged with a separate count of Endangering the Welfare of a Child and Forcible Touching due to an alleged incident which occurred on or about December 27, 2020 at the same location. These charges are under docket CR-00895-21 and involve a thirteen-year-old alleged victim. The defendant was arraigned on such charges on March 22, 2021 and thereafter filed an omnibus motion on April 7, 2021, seeking the following relief: 1. An Order dismissing the charge of Forcible Touching [Docket No. CR-895-21] pursuant to CPL 170.30(1)(a) & (f) and 170.35(1)(a) as being insufficient as a matter of law; 2. An Order dismissing the charge of Forcible Touching [Docket Nos. CR-894-21 and CR-895-21] pursuant to CPL 170.30(1)(a) & (f) and 170.35(1)(a) as the informations are insufficient as a matter of law; 3. An Order dismissing the charge of Endangering the Welfare of a Child [Docket Nos. CR-894-21 and CR-895-21] pursuant to CPL 170.30(1)(a) & (f) and 170.35(1)(a) as the informations are insufficient as a matter of law; 4. Hearing to determine the admissibility of prior convictions (Sandoval); 5. Preclusion of Statements / Suppression of Statements (Huntley); 6. Reservation of Rights On April 28, 2021, the People filed an answering affirmation opposing the relief being requested. Upon consideration of the pleadings filed herein, the Court finds as follows: 1. Motion to Dismiss the charge of Forcible Touching [Docket No. CR-00895-21] The defendant asserts the charge of forcible touching is insufficient as a matter of law based upon the contents of the supporting deposition and information. Specifically, the defendant points to the claims made by the alleged victim, in that the defendant, while hugging her ‘goodbye’, allegedly touched her “butt with both hands” and that he “just rest[ed] them there, he d[id] not squeeze.” The defendant argues that the allegation of mere touching, without the application of some level of pressure, is insufficient in and of itself to support the charge. It is also set forth that to qualify as a forcible touching charge, such action must be undertaken with culpable intent, and there is no bad intent alleged or any that can be reasonably inferred. The People assert the accusatory instrument alleges the defendant slid his hands down the alleged victim’s back, along with placing his hands on her buttocks, which created “pressure and friction” sufficient to support the charge. The People also set forth that only some level of pressure need to be applied to a victim’s sexual or intimate parts, and a defendant’s culpable intent can be inferred when there is “intimate” contact with a child. The Court notes that the sufficiency of the “intent” claim will be undertaken in the second portion of this decision as similar arguments are made as to the other forcible touching charge under docket CR-892-21. Pursuant to CPL §170.35(1), an accusatory instrument is defective when it is “not sufficient on its face pursuant to the requirements of [CPL] section §100.40.” CPL §100.40(1) provides that an information is sufficient on its face when: a. It substantially conforms to the requirements prescribed in [CPL] 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 instrument; 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 (see also CPL §100.15[3] and People v. Alejandro, 70 NY2d 133). The statutory definition of Forcible Touching (PL §130.52) states: 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; or 2. Subjects another person to sexual contact for the purpose of gratifying the actor’s sexual desire and with intent to degrade or abuse such other person while such other person is a passenger on a bus, train, or subway car operated by any transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions. For the purposes of this section, forcible touching includes squeezing, grabbing, or pinching. The information charging the defendant with forcible touching alleges the defendant “did commit the offense of Forcible Touching when he intentionally and for no legitimate purpose touched the buttocks of an underage female victim (DOB XX/X/XX) over her clothing with both hands.” In the sworn deposition of the alleged victim, she sets forth that when the defendant would give her hugs, he would then slide his hands down her back and touch her buttocks with both hands. The defendant would then rest his hands there but would not “squeeze” this area. The alleged victim also goes on to state that the defendant would sometimes kiss her on the forehead and such behavior would not bother her, as he would engage in such conduct with everyone that he hugged. Based upon the defendant’s argument, 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. 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”. Furthermore, it has been held that “a pat on the buttocks, regardless of how offensive it might be to the recipient, does not qualify as “forcible” touching”. (People v. Nuruzzaman, 8 Misc.3d 356 [Crim Ct, New York County 2005]) This Court disagrees with such assertion, as the forcible touching statute, which the defendant is charged, was enacted in 2000 due to a disturbing trend of assaults which had been committed in New York City’s Central Park and “the Legislature recognized, implicitly that women are entitled to be protected from unwanted, physical sexual contact by males, and that because of that trend, such “atrocities” must be addressed.” (People v. Powell, 19 Misc.3d 364 [Crim Ct. Kings County 2008]) The Court in Powell, supra, 19 Misc. 3d 364 at 369, also went onto state that even if the touching which occurred was “done lightly”, it is sufficient for facial sufficiency purposes, as it is also the nature of the defendant’s contact which must be considered. In addition, there are behaviors which constitute forcible touching outside the realm of “squeezing, grabbing, or pinching”, as such behaviors are not all inclusive. While the defendant argues that “some level of pressure” must be applied to qualify as forcible touching, it has been found that merely rubbing and pressing up against a victim is sufficient to meet statutory requirements. (People v. Bartlett, 89 AD3d 1453 [4th Dept. 2011]. As such, the Court finds that the defendant’s actions of “sliding” his hands down the back of the victim which led to the resting of his hands on her buttocks is a sufficient demonstration of forcible touching. (People v. Guaman, 985 NYS 2d 209 [2014]) As such, the defendant’s motion to dismiss under this legal argument is denied. 2. An order dismissing the charge of Forcible Touching [Docket Nos. CR-894-21 and CR-895-21] pursuant to CPL 170.30(1)(a) & (f) and 170.35(1)(a) as the informations are insufficient as a matter of law. The defendant argues that each information accusing the defendant of forcible touching, under both dockets, are legally insufficient as they allege the defendant “intentionally, and for no legitimate purpose, forcibly touche[d] the sexual or intimate parts of another person for the purpose of degrading or abusing such person.” Specifically, the defendant argues the informations, along with the supporting depositions, do not establish nor allow an inference to be drawn that the defendant intended, in any way, to degrade or abuse anyone, which is a necessary element of the crime. The defendant relies upon the standard set forth in People v. Hatton,26 NY3d 364 [2015], which separated the actus reus elements of the offense and the purpose elements. In short, the defendant states that his conduct was none other than a respectful expression of affection and in no way was degrading or abusive. The People argue the accusatory instruments are sufficient, as each describes how the defendant intentionally touched the buttocks of the alleged victims, for no legitimate purpose. It is further asserted that an inference can be drawn as to the defendant’s intent, based upon his actions which involved two children. The People also argue that the alleged victims, subject to the defendant’s conduct, would “succumb to the actions rather than facing repercussions that would come about if they tried to say no” due to the inferior nature of their position. In the defendant’s reply affirmation, it is re-iterated that the charges of forcible touching fail to provide factual allegations sufficient to establish that the defendant intended, in any way, to degrade or abuse anyone, and the People’s citation of caselaw is misplaced. Specifically, the defendant argues that the allegations do not allege the defendant’s actions were taken for the purpose of sexual gratification, but rather for the purpose of abuse or degradation of the alleged victims. Therefore, the People’s argument that an inference can be drawn as to the defendant’s “intent”, is not applicable, as such inference is limited to circumstances whereupon an individual is seeking sexual gratification. It is clear there are two separate stated purposes set forth in the law, one of which must be alleged upon a charge of forcible touching. The conduct must have either been degrading or abusive to the victim, or in the alternative, it must have been for the perpetrator’s sexual gratification. The Court agrees with the defendant that the People’s reliance upon People v. Fuller, 50 AD 3d 1171 [3rd Dept. 2008] is misplaced, whereupon “intent” was inferred, due to intimate contact being initiated with the child, for the purpose of the defendant’s sexual gratification. In the underlying matter, the defendant is charged with forcible touching for the “purpose of degrading or abusing such person”, and as such, an inquiry must be made whether the accusatory contains this necessary element. The Court in People v. Bueno, 18 NY3d 160 [2011] held that “intent is rarely proven by an explicit expression of culpability by the perpetrator” and based upon the inherit difficulties surrounding proof of a defendant’s mental state “intent may be inferred from conduct as well as the surrounding circumstances.” (People v. Steinberg, 79 NY2d 673 [1992]). Upon review of the accusatory instruments and supporting depositions, the Court finds the allegations to be sufficient to conclude that the defendant forcibly touched the two minor children for the purpose of degradation or abuse. In short, the defendant’s alleged behavior is not consistent with normal expressions of genuine affection, and it is reasonable to infer that placing one’s hands on a minor child, in such a private area, is intended to be degrading or abusive. The Court also relies upon the surrounding circumstances and narratives, in that one of the alleged victim’s stated in her deposition that just prior to the incident, the defendant “pulled me onto his lap and had me sit on his lap I sat on his lap for a minute or two. His right hand was on the lower part on my thigh. He has done this before and it is weird. It makes me feel uncomfortable. It is also noted that both of the minor females indicated that they were made to feel “uncomfortable” by the defendant’s actions. As such, in addition to the findings set forth above, the intent of the defendant’s purpose can easily be surmised in a contextual review of the circumstances, the age of the victims, and ability of the victims to refute such conduct. Thereby, upon application of the standard set forth in People v. Hatton, 26 NY3d 364 [2015], the Court finds the accusatory instruments are facially sufficient, as a trier of fact could reasonably conclude that the defendant committed the offense of forcible touching. Thus, the defendant’s motion to dismiss is hereby denied. 3. An Order dismissing the charge of Endangering the Welfare of a Child [Docket Nos. CR-894-21 and CR-895-21] pursuant to CPL 170.30(1)(a) & (f) and 170.35(1)(a) as the informations are insufficient as a matter of law. The defendant argues the accusatory instruments do not contain any factual allegations regarding the likelihood of harm to the physical, mental, or moral welfare of the victims and therefore seeks dismissal of Endangering the Welfare charges. The defendant further argues that the accusatory instruments, under each docket, provide no factual allegations to support the element of the defendant’s “knowledge” that the alleged acts committed would likely be injurious to the children. The People argue the defendant acted in a manner likely to be injurious to the physical, mental, or moral welfare of the children, upon intentionally touching an intimate part of the two alleged minor victims. The People further assert it is by the defendant’s actions alone, i.e. placing his hands on the buttocks of the children, that moral or mental harm has resulted. The People further argue that this is especially true, given the superior position of the perpetrator. The Court finds the accusatory instruments contain the necessary element of “likeliness” of harm to the children’s physical, mental or moral welfare. It is noted that it is not necessary for the People to prove that a “child’s mental or moral welfare actually be impaired, no injury or actual harm need result from Defendant’s action or inaction” upon brining the charge of Endangering the Welfare of a Child. (People v. Freeman, 34 Misc.3d 1217(A). Furthermore, Penal Law §260.10(1) is “broadly written and imposes criminal sanctions for the mere ‘likelihood of harm’ (People v. Sanderson, 68 AD3d 1716 [4th Dept 2009] citing People v. Johnson, 95 NY2d 368 [2000]). It is noted in People v. Sanderson, that the defendant’s actions of attempting to kiss a minor victim, was sufficient to support the charge of endangering the welfare of a child. In the underlying matter, the defendant is alleged to have actually subjected the two prepubescent females to touching and/or squeezing of a private area. The Court finds that it is reasonable to conclude that mental or moral harm will result to a child when an adult male “squeezes” or “rests” their hands on the buttocks area of a female child. This conclusion is further supported upon review of the supporting depositions and allegations, in which both of the victims were made to feel “uncomfortable” by the alleged behavior, and the thirteen-year-old victim described the defendant’s actions as being “weird”. As it relates to the defendant’s argument that the accusatory instruments do not contain factual allegations to support the element of the defendant’s “knowledge”, the Court finds it is without merit. It has been held that a defendant knowingly “acts in a manner likely to be injurious to a child when the defendant is aware that his or her conduct may likely result in harm”. It has been held that a “jury could reasonably infer that defendant was aware that his conduct in ordering his daughter to leave his home in failing to provider her with food or shelter ‘create[d] a likelihood of harm’ to his daughter” People v. Scutt, 19 AD3d 1131, [4th Dept. 2005] citing People v. Simmons, 92 NY2d 829 [1998]). In addition, it has been held that a strong inference could be drawn as to a defendant’s knowledge that such behavior would be injurious to the child’s mental or moral welfare, upon watching a minor child who is showering without their knowledge. (People v. Flower, 173 AD3d 1449 [3rd Dept. 2019]). As such, it is reasonable to infer that an individual would possess the requisite knowledge that the behavior of touching, resting their hands, or squeezing the buttocks area of a child would likely result in harm to such child. Therefore, the defendant’s motion to dismiss on these grounds is further denied. 4. & 5. Hearing to determine the admissibility of prior convictions / bad acts (Sandoval Ventimiglia) The defendant requests that the People be precluded from asking any questions concerning defendant’s arrest record, conviction record or any prior immoral, vicious, or other bad acts. The defendant also requests that an order is entered requiring the People to give the defendant notice of their intention to introduce any evidence of uncharged crimes in their case in chief. The People oppose the Court summarily ruling on this issue without an opportunity to be heard. Suppression of evidence of prior criminal convictions or bad acts is not included in CPL §710.20 and as such, a motion for a hearing to determine the admissibility of criminal convictions or bad acts is not properly included in a pre-trial motion. In any event, the People have until 15 days prior to the scheduled trial date to provide notice to defendant of their intention to introduce evidence of defendant’s prior bad acts or criminal convictions (CPL §245.10[1][b]). If, at that time, the People indicate their intention to use such bad acts or convictions, the Court will conduct a hearing even in the absence of a motion. The defendant also seeks a copy of the defendant’s Division of Criminal Justice Services report pursuant to CPL §160.40. In the event that such document has not been provided, it will be made available to the defendant at the next pre-trial conference. 6. Motion to Suppress Statements The defendant moves to suppress from use all oral / written statements attributed to him as such statements were involuntarily obtained. Further, the defendant is seeking a suppression hearing of only the alleged statements made to law enforcement that were properly noticed pursuant to section 710.30 of the Criminal Procedure Law. The defendant further seeks preclusion of all other statements which proper notice was not provided. The People oppose the suppression of any statement made but do not oppose a Huntley Hearing. The People further note that notice pursuant to §710.30 was served on the defendant in regard to the statements the People intend to offer at trial as evidence against the defendant. A defendant claiming that statements to law enforcement were made involuntarily is entitled to a hearing to determine voluntariness, even in the absence of any factual allegations to support such motion. Accordingly, a hearing will be conducted to determine whether the statements made by the defendant were involuntary. It is noted that a Notice pursuant to §710.30 was included with the certificate of compliance filed by the People, related to statements made by the defendant to Inv. T. Ciccone of the Utica Police Department. 7. Reservation of Rights to Submit Further Motions Criminal Procedure Law §255.20(3) specifically sets forth the circumstances under which motions may be renewed or filed notwithstanding provisions of time or inclusion in the initial motions. There is no need to file a motion for such relief. Nor could the court possibly determine at this time whether the unspecified motions that defendant wishes to reserve the right to file in the future are based upon grounds which the defendant could not have raised in the instant motion. As such, the defendant’s motion in this regard is denied. The Court notes that the People “reiterate” their demand for reciprocal discovery pursuant to CPL §245, and request information contained in CPL §245.20[1] sub-sections (f), (g), (h), (j), (l), and (o) along with names of witnesses as prescribed in §245.20[4][a]. The proper avenue to address such issue is not in the form of a reply affirmation. Rather there are remedies available for non-compliance of the discovery rules as set forth in CPL §245.80. Thus, the Court will not entertain the relief requested in the context of this decision. Therefore, the defendant’s motion to dismiss the charges filed subject to this motion are hereby denied and the Court will hold a hearing to determine whether statements contained in the CPL §710.30 notice were made involuntary (Huntley Hearing). This constitutes the Decision and Order of the Court. Dated: June 7, 2021
