The People, Respondent,v.Luis Guaman, Appellant.

Brief

N.Y.January 9, 2014

To be argued by JAMES M. MCGUIRE (15 MINUTES) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LUIS GUAMAN, Defendant-Appellant. BRIEF FOR DEFENDANT-ApPELLANT JAMES M. MCGUIRE Pro bono co-counsel to The Legal Aid Society Dechert LLP 1 095 Avenue ofthe Americas New York, NY 10036-6797 Tel: (212) 698-3658 Fax: (212) 698-0489 April 12,2013 STEVEN BANKS LA~NCET.HAUSMAN Attorneys for Defendant-Appellant The Legal Aid Society 199 Water Street New York, NY 10038 Tel: (212) 577-7989 Fax: (646) 616-4989 TABLE OF CONTENTS Page PRELIMINARY STATEMENT .................................................................................................... 1 QUESTION PRESENTED ............................................................................................................. 1 STATEMENT OF FACTS ............................................................................................................. 2 ARGUMENT .................................................................................................................................. 4 POINT ............................................................................................................................................. 4 BECAUSE NO FACTS ESTABLISHING A FORCIBLE TOUCHING WERE ALLEGED THE INFORMATION WAS JURISDICTIONALLY DEFECTIVE ........................................ 4 A. No Facts Establishing A Forcible Touching Were Alleged ............................................ 5 B. The Infonnation Was Jurisdictionally Defective .......................................................... 12 CONCLUSION ............................................................................................................................. 13 1 2057455.6 TABLE OF AUTHORITIES CASES 242-44 E. 77th St., LLC v. Greater N.Y. Mut. Ins. Co., 31 A.D.3d 100 (1 st Dept. 2006) ........................................................................... 5 Matter of DaimlerChrysler Corp. v. Spitzer, 7 N.Y.3d 653 (2006) ............................................................................................ 5 Matter ofRiefberg's Estate, 58 N.Y.2d 134 (1983) .......................................................................................... 5 People v. Chiddick, 8 N.Y.3d 445 (2007) ............................................................................................ 7 People v. Dethloff, 283 N.Y. 309 (1940) ............................................................................................ 8 People v. Dreyden, 15 N.Y.3d 100 (2010) .................................................................................. 12, 13 People v. Gowdy, 2013 NY Slip Op 50263 ....................................................................................... 8 People v. Guaman (A2) ....................................................................................................................... 1 People v. Guinn, 37 Misc. 3d 28 (App. Term 1 st Dept. 2012) ....................................................... lO People v. Jones, 9 N.Y.2d 259 (2007) ............................................................................................ 1 People v. Jones, 9 N.Y.3d 259 (2007) .......................................................................................... 12 People v. Kalin, 12 N.Y.3d 225 (2009) .................................................................................... 1,12 People v. Nuruzzaman, 8 Misc. 3d 356 (Cr. Ct. N.Y. Cnty. 2008) ................................................ 6, 10, 12 2057455.6 11 People v. Powell, 19 Misc. 3d 364 (Cr. Ct. Kings Cnty. 2008) ................................................ 10, 11 People v. Soto, 192 Misc. 2d 161 (Cr. Ct. N.Y. Cnty. 2002) ...................................................... 11 People v. Tran, 80 N.Y.2d 170 (1992) .......................................................................................... 8 We're Assocs. Co. v. Cohen, Stracher and Bloom, 65 N.Y.2d 148 (1985) .......................................................................................... 6 STATUTES 19 Misc .................................................................................................................... 10 192 Misc .................................................................................................................. 11 C.P.L. § 100AO(I)(c) ........................................................................................... 2, 12 C.P.L. § 1 00.50(2) ..................................................................................................... 4 C.P.L. § 450.90(1) ..................................................................................................... 1 Penal Law § 5.00 ................................................................................................. 9, 10 Penal Law § 10.00 ..................................................................................................... 7 Penal Law § 130.00(3) .............................................................................................. 7 Penal Law § 130.52 .......................................................................................... passim Penal Law § 130.55 ............................................................................................... 2, 7 Penal Law § 245.00 ................................................................................................... 2 OTHER AUTHORITIES Merriam-Webster Online Dictionary ........................................................................ 7 New Oxford Dictionary of English ........................................................................... 7 Samuel Johnson, A Dictionary of the English Language: An Anthology, at 29 .......................................................................................................................... 9 2057455.6 111 PRELIMINARY STATEMENT By permission of the Honorable Carmen B. Ciparick, granted on October 4, 2012 (Appendix ["A"] 1), appellant appeals from an order of the Appellate Term, First Department dated June 27, 2012. The order affirmed ajudgment of the Criminal Court of the City of New York, New York County, rendered October 22, 2009 (Robert M. Mandelbaum, l), convicting appellant, upon a plea of guilty, of forcible touching (P.L. § 130.52), and sentencing him to a conditional discharge with three days of community service. See People v. Guaman (A2). He had no co- defendants below. This Court has jurisdiction to hear the appeal pursuant to c.P.L. §450.90(l). The issue of law raised on appeal concerns the jurisdictional sufficiency of the factual allegations in the accusatory instrument, which is reviewable notwithstanding that it is raised for the first time on appeal following a guilty plea. See ~ People v. Kalin, 12 N.Y.3d 225,228 (2009); People v. Jones, 9 N.Y.2d 259,262 (2007). QUESTION PRESENTED Whether the information charging forcible touching was jurisdictionally defective for failure to make factual allegations that, if true, would establish an essential element ofthat crime -- the requirement that the touching be "forcible" -- when it alleged merely an act of "rubb[ing]"? STATEMENT OF FACTS The Accusatory Instruments On April 9, 2009, appellant was arraigned in the Criminal Court of the City of New York on an accusatory information charging him with the commission of three crimes -- forcible touching (Penal Law § 130.52), sexual abuse in the third degree (Penal Law § 130.55) and public lewdness (Penal Law §245.00) -- allegedly committed on April 8, 2009 at 4:25 p.m. in a subway in Manhattan (A4). In relevant part, the instrument alleged that the deponent, Police Officer Raymond Low, observed appellant "approach and stand directly behind [the complainant]," remove his penis from his pants and "rub[] [his] groin area and exposed penis against [the complainant's] buttocks" (A4).1 Thereafter, the People filed a prosecutor's information charging appellant with the same three crimes. With respect to its factual allegations, the information, which is not dated, simply alleges the relevant language of each statute (and, of course, the time, date and place the crimes allegedly were committed) (A7-8). As the factual allegations supporting the charge of public lewdness were based on the personal knowledge of Officer Low, the accusatory instrument was an information with respect to that charge. C.P.L. §lO0.40(1)(c). When first filed, the instrument was a misdemeanor complaint as to the other charges, because the allegation that the touching of the complainant was not consensual was based on hearsay. By a supporting deposiiion dated April 16,2009 and thereafter filed in Criminal Court, the complainant swore to the truth of the additional factual allegation in the accusatory instrument that he had informed Officer Low that he "did not consent to [appellant] touching [him] in any manner" (A6). 2057455.6 2 The Plea And Sentencing Proceedings On October 22,2009, appellant appeared before Judge Robert M. Mandelbaum and pleaded guilty to the top count of the prosecutor's information, the class A misdemeanor of forcible touching, in full satisfaction of all counts in the information (AIO).2 (Each of the other two crimes charged, third-degree sexual abuse and public lewdness, are class B misdemeanors.) Appellant was sentenced that same day to a conditional discharge with three days of community service (Al3). At no point during the proceeding was appellant asked to waive his right to prosecution by information. The Appeal To The Appellate Term On his appeal to the Appellate Term, First Department, appellant advanced the same argument he raises on this appeal: the information was jurisdictionally defective because the only relevant fact alleged -- a mere act of "rubb[ing]" -- does not establish the "forcible" element of the crime of forcible touching. In a per curiam opinion dated June 27, 2012, a two-Justice panel of the Appellate Term (Richard Lowe, III, P.J., Alexander W. Hunter, Jr., J.) rejected appellant's argument (A2-3). The panel noted that "[t]he information ... alleged that ... 2 Prior to the guilty plea, a combined Huntley-Wade-Dunaway hearing was held before Judge Mandelbaum. As the resolution of the underlying motions is not in dispute on appeal, the hearing evidence need not be recounted. 2057455.6 3 defendant rubbed his 'groin area' and exposed penis against the victim's buttocks without the victim's consent." According to the panel, [t]hese factual allegations, given a fair and not overly restrictive or technical reading (People v Casey, 95 N.Y.2d at 354,360 [2000]), are sufficient for pleading purposes to establish reasonable cause to believe and a prima facie case that defendant committed the crimes of forcible touching (see Matter of Nejee A., 26 AD3d 258 [2006], Iv denied 7 NY3d 703 [2006]; see also People v Pardew, 20 Misc3d 129 [A], 2008 NY Slip Op 51384[4] 2008 App Term, 1st Dept.], Iv denied II NY3d 792 [2008]" (A2-3). ARGUMENT POINT BECAUSE NO FACTS ESTABLISHING A FORCIBLE TOUCHING WERE ALLEGED THE INFORMATION WAS JURISDICTIONALLY DEFECTIVE The factual allegation of an act of "rubb[ing]" by appellant fails to establish an essential element ofthe crime of forcible touching, i.e., the requirement that any touching otherwise within the statute be "forcible." Accordingly, the information is jurisdictionally defective.3 3 The prosecutor's information replaced the underlying information. The district attorney may file a prosecutor's information and supersede a local criminal court accusatory instrument, such as an information, only if the offenses charged in the prosecutor's information are Hsupported, pursuant to the standard prescribed in subdivision one of section 100.40, by the allegations of the original information and/or any supporting depositions which may accompany it." C.P.L. § 100.50(2). Thus, for the prosecutor's information to be valid, the information it replaced was required to satisfY the requirements of an information. 2057455.6 4 A. No Facts Establishing A Forcible Touching Were Alleged Analysis of the statute must begin, of course, with its text. See Matter of DaimlerChrysler Corp. v. Spitzer, 7 N.Y.3d 653,660 (2006). The crime of forcible touching is committed when the actor, "intentionally, and for no legitimate purpose, forcibly touches the sexual or 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." Penal Law § 130.52. The statute also specifies that "[f]or the purposes of this section, forcible touching includes squeezing, grabbing or pinching." Id. As a threshold matter, the Appellate Term's construction of the statute is contrary to three fundamental canons of construction. Under the first, ejusdem generis, "a series of specific words describing things or concepts of a particular sort are used to explain the meaning of a general one in the same series." Matter of Riefberg's Estate, 58 N.Y.2d 134, 141 (1983). Under the second, noscitur a sociis, the meaning of a word or phrase is "determined by the company it keeps." 242-44 E. 77th St., LLC v. Greater N. Y. Mut. Ins. Co., 3 I A.D.3d 100, 103-104 (1 st Dept. 2006). Under the third, "[ w ]ords of ordinary import in a statute are to be give their usual and customary meaning, unless it is clear from the statutory language that a different meaning \vas intended," \x/e're Assocs. Co. v. Cohen, Str?cher Ponn Bloom, 65 N.Y.2d 148, 151 (1985). 2057455.6 5 As the statute specifies that "forcible touching includes squeezing, grabbing or pinching," Penal Law § 130.52, the meaning of the general terms, "forcible touching" and "forcibly touches," must be determined in accordance with the company they keep, the three specific examples. Each of the specific examples, "squeezing, grabbing [and] pinching," share a common core. In all three, a sexual or intimate part of the victim is compressed between two objects. In his well- reasoned decision in People v. Nuruzzaman, 8 Misc. 3d 356 (Cr. Ct. N.Y. Cnty. 2008), Judge Richard M. Weinberg focused his analysis on the ordinary meaning of the examples in the course of dismissing a forcible touching charge. After noting that "[ u ]nder basic rules of statutory construction and interpretation, 'statutory language is to be read in accordance with its ordinary and accepted meaning,'" id. at 357, Judge Weinberg observed as follows: To squeeze is to 'firmly press from opposite or all sides (New Oxford [Dictionary of English]). To grab is to 'grasp or seize suddenly or roughly" (id.). To pinch is to 'grip tightly and sharply between finger and thumb' (id.). Id. at 357-358. Of course, a squeeze, grab or pinch can be so gentle as to entail virtually no manual pressure. Nonetheless, in common parlance the act of "squeezing, grabbing or pinching" is likely to entail the infliction ofpain4 or at least non-trivia! 4 That is not to say, however, that the act must be likely to cause "substantia! pain," as that term is defined for purposes of the physical injury requirement of Penal Law § 1 0.00. See People v. Chiddick, 8 N.Y.3d 445, 447-448 (2007). 2057455.6 6 physical discomfort. The conclusion that pain or at least such discomfort must be likely to occur is supported as well by the fact that each term is an example of a "forcible" touching. As Judge Weinberg also pointed out, "[t]he word forcible connotes something 'done by force, vigorous and strong and powerful" (New Oxford Dictionary of English) or that which is 'effected by force used against opposition or resistance' (Merriam-Webster Online Dictionary)." rd. at 357. Obviously, the mere act of "rubbing" does not without more entail either such compression, pain or physical discomfort. Surely no one would think that a mother who rubbed or patted her child's head had "forcibly" touched her child's head. If the information's allegation of an act of "rubbing" is sufficient, as the Appellate Term held, it follows both that (1) the word "forcibly" is mere surplusage, and (2) the lesser crime of third-degree sexual abuse is rendered surplusage at the will ofthe prosecution. Specifically, the sexual abuse crime is committed when an actor "subjects another person to sexual contact" (Penal Law § 130.55), and the term "sexual contact" is defined to mean "any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party." Penal Law § 130.00(3). Because any rubbing or other touching with the mens rea required for third-degree sexual abuse also would establish the • r- f" '1 1, 1 • 1 -h rl 1 1 A 11,.., 1 1 •• cnme or IorClOle {OUelling as ael.lneu ny tne A..ppeiiate 1 enn, tne at oest qUIxotIC result would be that any conduct that establishes the sexual abuse offense 2057455.6 7 necessarily would establish the essential elements of the forcible touching offense, even though the latter offense is a more serious crime. Thus, in substance, the Appellate Term's interpretation ofthe forcible touching statute implicitly reads the word "forcibly" out of the statutory text. 5 That, of course, is impermissible. See People v. Tran, 80 N.Y.2d 170, 176 (1992) ("Nor can we, by interpretation, strip a critical new word of its plain and intended meaning, rendering it useless or superfluous") (citations omitted); People v. Dethloff, 283 N.Y. 309, 315 (1940) (stating that the Court must proceed "upon the assumption that the Legislature did not deliberately place in the statute a phase which was intended to serve no purpose") (citations omitted). To be sure, the statute does not include language stating, in haec verba, that a forcible touching must be one that is likely to cause pain or at least non-trivial physical discomfort. For the reasons stated above, however, appellant's position is that the fair implication to be drawn both from the requirement that a touching be "forcibl[ e]" and from the nature of the three examples specified by the Legislature, is that the act must be one that is likely to cause pain or at least such physical discomfort. Another basis for this reading of the statute is rooted in a distinction between the forcible touching and third-degree sexual abuse statutes. The forcible 5 ..-r.;. '. • .' r- .1 '" 1 1 1.1 /'; .,. rT"\ ..1 1 . i filS Interpretanon or tHe SIartu:e alSO lea tHe Appeilm:e 1 erm to rue erroneous conClUS10n that a "defendant's conduct ... [of] rubbing his hand 'up and down the split of [the] victim's buttocks'" was legally sufficient evidence to support a conviction for forcible touching. People v. Gowdy, 2013 NY Slip Op 50263. 2057455.6 8 touching statute differs from the third-degree sexual abuse crime not only by requiring that the touching be "forcibl[ e ]," but also by providing that this more serious offense is committed when the actor has "the purpose of degrading or abusing" the victim. Penal Law § 130.52. A touching that is forcible enough as to be likely to cause pain or such discomfort, is more likely to be one committed for the "purpose of degrading or abusing" the victim. For all these reasons, appellant's interpretation of the statute is the one that is consistent with the Legislature'S intent and the interpretive precepts set forth in Penal Law section 5.00. In contrast to appellant's interpretation of the statute, which recognizes and gives meaning to the striking similarity between the three examples of "forcible" touchings specified by the Legislature, the Appellate Term's decision ignores that striking similarity. By doing so, the court renders meaningless the Legislature'S intent to use the examples to help define the offense.6 While the similarities among the examples that appellant has noted may not be comprehensive or definitive, the significance ofthese examples cannot be ignored.7 6 Dr. Johnson provides a possible explanation for the absence of an analytic definition of the tenn "forcible touching." "To explain requires the use oftenns less abstruse than that which is to be explained, and such tenns cannot always be found; for as nothing can be proved but by supposing something intuitively known, and evident without proof, so nothing can be defined but by the use of words too plain to admit a definition." Samuel Johnson, A Dictionary of the English Language: An Anthology, at 29 (edited by David Crystal) (Penguin Books 2005). 7 By stating that a forcible touching "includes" squeezing, grabbing or pinching," P.L. § 130.52 (emphasis added), the Legislature made clear that the three exalnples are not a closed set. Another example of a "forcible touching" is the act of biting an intimate body part. Moreover, in People v. Guinn, 37 Misc. 3d 28, 29 (App. Tenn 1 st Dept. 2012), the defendant was 2057455.6 9 The particular facts in People v. Nuruzzaman warrant emphasis. In that case, the information alleged only that the defendant twice placed his hand on and "patted" the buttocks of the complainant. Id. at 357 As Judge Weinberg reasoned, to equate the alleged patting with a forcible touching "would obliterate any distinction between the 'forcible' touching of Penal Law § 130.52, an A misdemeanor, and the 'any' touching contained in the definition of sexual contact under sexual abuse in the third degree, a B misdemeanor." Id. at 358. But in People v. Powell, 19 Misc. 3d 364 (Cr. ct. Kings Cnty. 2008), the accusatory instrument alleged that the defendant "place[d his] head on informant's buttocks and did touch informant's vagina over informant's clothes." 19 Misc. 3d at 365. Expressly disagreeing with Judge Weinberg's analysis, the court wrote that "[e]ven if done lightly, in the nature of a 'patting' touch as described in Nuruzzaman ... , in this court's view, the nature of this defendant's alleged contact must be viewed ... as being 'forcible.'" Id. at 369-70 (emphasis added). Thus, in Powell, even a light touching was held to be a forcible touching, thereby negating the Legislature's evident intent that the crime offorcible touching be an aggravated form of sexual abuse. charged with forcible touching for, inter alia, "grinding fu"'1d pok[ingJ" the victim. Suffice it to say, it may well be that acts of "grinding" and "poking" can be committed under circumstances that both involve the compression of an intimate body part between two objects and are likely to cause at least non-trivial physical discomfort. 2057455.6 10 People v. Soto, 192 Misc. 2d 161 (Cr. Ct. NY Cnty. 2002), which upheld the sufficiency of an accusatory instrument charging forcible touching, also sheds light on the flawed character of the Appellate Term's decision in this case. The accusatory instrument alleged that "the defendant twice placed his fingers on [the victim's] vagina and pushed his fingers upon [her] vagina through her clothing." 192 Misc. 2d at 163. The court found this allegation sufficient because, "by pushing his fingers onto her vagina, he exerted manual pressure on her intimate body part." Id. at 167. The court's reasoning proves too much. After all, any touching entails the application of "manual pressure," and thus the court's reasoning does not come to grips with the crucial question: which acts of manual pressure constitute forcible touchings? For the reasons stated above, the answer to that question is that a touching is forcible only ifit (1) compresses the sexual or intimate parts of the victim between two objects, and (2) is likely to cause the victim pain or at least non-trivial physical discomfort. Even if the Court were to conclude that both conditions need not always be satisfied, at the very least one ofthe two conditions must be satisfied. Here, reversal is required because the information does not allege facts sufficient to establish either condition. The mere act of rubbing, which entails neither any such • ~ • 1 l' f". {- 1 (" "1 1. 1 • rn 1 1 1 compieSSlon nor even pnYSlcal GlSCOllrOTI, canllO .. De a IorCIOie louclllng. i 0 nOla otherwise, "would obliterate any distinction between the 'forcible' touching of 2057455.6 11 Penal Law § 130.52, an A misdemeanor, and the 'any' touching contained in the definition of sexual contact under sexual abuse in the third degree, a B misdemeanor." People v. Nuruzzaman, supra, 8 Misc. 3d at 358. B. The Information Was Jurisdictionally Defective The People have never disputed that if the information failed to allege facts that would establish the requirement of Penal Law § 130.52 that the touching be "forcible," the information would be jurisdictionally defective with respect to the forcible touching charge and appellant may challenge the information on this ground despite his guilty plea. As this Court has ruled, "[a]n information that does not satisfy [the prima facie case] standard [ofC.P.L. § 100.40(1 )(c)] by failing to allege a complete element of the charged offense is jurisdictionally defective and may be challenged on appeal even though a defendant never raised the alleged insufficiency prior to entering a guilty plea." People v. Kalin, 12 N.y'3d 225,229 (2009). See also People v. Dreyden, 15 N.Y.3d 100, 103 (2010) (misdemeanor complaint jurisdictionally defective because it failed to allege facts supporting police officer's belief that knife was a "gravity knife," an essential element of the charged weapon possession offense); People v. Jones, 9 N.y'3d 259,262-263 (2007) (information that failed to allege facts establishing mens rea element of charged crime jurisdictionally defective). 2057455.6 12 Because appellant has already served his sentence, the information should be dismissed. People v. Dreyden. supra, 15 N.y'3d at 104. CONCLUSION For the foregoing reasons, the order of the Appellate Term should be reversed and the information should be dismissed. JAMES M. McGUIRE Pro bono co-counsel to The Legal Aid Society Dechert LLP 1095 Avenue ofthe Americas New York, NY 10036-6797 Tel: (212) 698-3658 Fax: (212) 698-0489 April 12, 2013 2057455.6 13 ~~L STEVEN BANKS LA~NCET.HAUSMAN Attorneys for Defendant-Appellant The Legal Aid Society 199 Water Street New York, NY 10038 Tel: (212) 577-7989 Fax: (646) 616-4989 COURT OF APPEALS STATE OF NEW YORK -----------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- LUIS GUAMAN, Defendant-Respondent. -----------------------------------------------------------------------)( AFFIRMATION OF SERVICE LAWRENCE T. HAUSMAN, an attorney duly admitted to practice before the courts of this State, hereby affirms under penalty of perjury: That on April 12, 2013, three copies of the within appellant's Brief and Appendix was served upon Hon. Cyrus R. Vance, Jr., District Attorney [attn: ADA Yuval Simchi-Levi], New York County, attorney for respondent, at One Hogan Place, New York 10013, the address designated by him for that purpose, by depositing true copies of the same in a postpaid, overnight/express and properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Post Office Department within the State of New York. Dated: New York, New York April 12,2013