People v. Soto

PATRICIA NUÑEZ, J. The defendant is charged with sexual abuse in the third "sexual abuse" contained in Penal Law § 130.05 (2) (c) must be read to encompass the term "forcible touching" contained in Penal Law § 130.52 in order to give effect to the legislative intent. The primary conduct prohibited in sexual abuse in the third degree and forcible touching is identical: an unwanted touching of one's intimate body parts. Forcible touching contains an additional alternative intent element and requires a level of force not required in the sexual abuse statute, which raises the level of the primary act. For this reason, forcible touching is an aggravated form of sexual abuse. In this case, the relevant part of the complaint states that "the defendant twice placed his hands on the victim's vagina and pushed his fingers upon deponent's vagina * * * ." The acts specifically enumerated in the forcible touching statute, "squeezing, grabbing or pinching" are not exclusive but intended to serve as examples of the type of conduct prohibited. The instant allegations establish that the defendant subjected the complainant to sexual contact and used force in doing so; by pushing his fingers onto her vagina, he exerted manual pressure on her intimate body part. Such an act is facially sufficient for pleading purposes. Lack of consent can be established directly through the affidavit of a complainant or by circumstantial evidence. (People v Darryl M., 123 Misc 2d 723 [Crim Ct, NY County 1984].) Lack of consent in the instant case is established by the complainant's affidavit. For the foregoing reasons, the defendant's motion to dismiss for facial insufficiency is denied. The defendant has also moved to reargue and reopen the suppression hearing. The defendant's motion is granted to the following extent: the hearing is reopened to allow testimony of either Police Officer Borchik or the complainant to establish the lack of suggestiveness in the identification made by the complainant.