The defendant, Singkit Chan, is charged with sexual misconduct (P.L. §130.30[2]), forcible touching (P.L. 130.52), and sexual abuse in the third degree (P.L. §130.55). He now moves the court for an order inter alia: dismissing the accusatory instrument for facial insufficiency.

In determining the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People. People v. Contes, 60 NY2d 620, 621 (1983). "That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry. . . ." People v. Deegan, 69 NY2d 976, 979 (1987). "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, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360 (2000).

The within accusatory instrument states that on April 28, 2010, at about 8:15 a.m. at 80 John Street in the County and State of New York:

. . . deponent observed the defendant engage the deponent in oral sexual conduct without consent in that the deponent observed the defendant place the defendant's mouth around deponent's penis and touched deponent's penis with defendant's mouth. Deponent further states that the defendant intentionally, and for no legitimate purpose, forcibly touched deponent's penis for the purpose of degrading and abusing deponent, and for the purpose of gratifying defendant's sexual desire.

Deponent further states the deponent did not consent to the defendant's touching him in any [*2]way.

A violation of P.L. §130.20(2) occurs when a person "engages in oral sexual conduct . . . with another person without such person's consent."

The charge of sexual misconduct is facially insufficient. Each element of the offense has not been sufficiently pled in the accusatory instrument. The defendant's alleged acts of touching and placing his mouth around the victim's penis establish the occurrence of oral sexual conduct. However, the element of "lack of consent" has not been sufficiently pled.

Although not specifically stated in P.L. §130.20, "it is an element of every offense," defined in Article 130, "that the sexual act was committed without the consent of the victim." P.L. §130.05(1). "Lack of consent results from: (a) Forcible compulsion; or (b) Incapacity to consent." P.L. §130.05(2). By not having alleged or demonstrated "lack of consent" due to either forcible compulsion or incapacity to consent, the complaint does not allege "facts of an evidentiary character" supporting or tending to support the charge of sexual misconduct. The failure to allege a "lack of consent," an essential element of the offense, renders the charge facially insufficient and subject to dismissal.

Therefore, this Court must dismiss the charge of sexual misconduct for facial insufficiency, with leave to file a superseding information if speedy trial time has not expired.

The charge of forcible touching is facially sufficient. Each of the elements of the charge has been sufficiently pled in the accusatory instrument. The defendant's alleged act of touching the victim's penis with his mouth, without the victim's consent, establishes a forcible touching of the sexual or intimate parts of another.

As indicated above, "it is an element of every offense," defined in Article 130, "that the sexual act was committed without consent of the victim." P.L. §130.05(1). Unlike the charge of sexual misconduct, in addition to forcible compulsion or incapacity to consent, lack of consent can also be shown by "any circumstances . . . in which the victim does not expressly or impliedly acquiesce in the actor's conduct. . . ." P.L. §130.05(2). Here, the defendant placed his mouth directly on the victim's penis and the deponent did not expressly or impliedly acquiesce in the defendant's conduct. The within accusatory instrument, signed by the victim, clearly indicates that the alleged acts of the defendant were done without the consent of the victim. People v. Serrano, 5 Misc 3d 509, 512 (Dist. Ct. Nassau County 2004). Furthermore, lack of consent can [*3]be inferred from the surrounding circumstances. Id.

The defendant's assertion that he did not engage in "some level of force" because the way that he touched the victim was not described in the complaint as a form of "squeezing, grabbing or pinching" is misplaced. The defendant contends that forcible touching requires more than mere touching. People v. Nuruzzaman, 8 Misc 3d 356 (Crim. Ct. NY County 2005) (holding that defendant placing his hands on, and patting the complainant's buttocks was not sufficient to be deemed forcible touching). Here, the defendant touched and placed his mouth around the victim's penis. This does not equate with a pat on the buttocks. People v. Taylor, 23 Misc 3d 361 (Crim. Ct. NY County 2009) (holding that defendant rubbing his erect penis against the complainant's vagina, over her clothing, was sufficient to support the charge of forcible touching because it was more than "mere touching").

Further, "[s]queezing, grabbing, or pinching are but examples of conduct encompassed by the offense of forcible touching. "However, other contact . . . may be considered to be forcible." People v. Powell, 19 Misc 3d 364, 369 (2008) (allegations that the defendant was laying down next to the victim with his head on her buttocks, and touching her vagina over her clothes, without her consent, were facially sufficient to support the charge of forcible touching). ". . . the offense of Forcible Touching refers only to force used in connection with the touching, and not to force employed in order to compel." Id.

Finally, it is not necessary to set forth the element of sexual gratification in the accusatory instrument. It can be inferred from "the nature of the acts alleged and the context in which they were allegedly committed," that D's actions were done for the purpose of gratifying his sexual desire. Powell, 19 Misc 3d at 368.

Accordingly, the charge of forcible touching is facially sufficient, and the motion to dismiss this charge is denied.

Sexual Abuse in the third degreeP.L. §130.55

A violation of P.L. §130.55 occurs when a person "subjects another person to sexual contact without the latter's consent. . . ." P.L. §130.55. As it pertains to P.L. §130.55:

[s]exual contact means any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing.

P.L. § 130.00(3).

The charge of sexual abuse in the third degree is facially sufficient. The defendant is alleged to have touched and placed his mouth around the victim's penis, a sexual, intimate part of the victim's body. It is not necessary to set forth the element of sexual gratification in the accusatory instrument since it can be inferred from "the nature of the acts alleged and the context in which they [*4]were allegedly committed." Powell, 851 NYS2d at 368. As such, the accusatory instrument sufficiently alleges the element of sexual contact.

Further, the element of lack of consent is sufficiently pled in the accusatory instrument. In the case of sexual abuse, lack of consent results from forcible compulsion, incapacity to consent, or "any circumstances . . . in which the victim does not expressly or impliedly acquiesce in the actor's conduct." P.L. §130.05(2).

"[A] showing of brazen or depraved conduct is not required to sustain a conviction of third degree sexual abuse; rather, "all the People need show is that a defendant, without consent, subjected another to sexual contact'." People v. Sumpter 190 Misc 2d 115, 118 (App. Term 1st Dept. 2001), appeal denied, 97 NY2d 762 (2002). Even though the victim did not openly protest to the defendant's actions, such is not necessary in order to demonstrate a lack of consent. The failure of the victim to yield to the defendant's sexual contact demonstrates that the victim did not consent. Moreover, the accusatory instrument signed by the victim in the within case clearly indicates that the alleged acts of the defendant were done without consent. People v. Serrano, supra at 512. These factual allegations are sufficient, at the pleading stage, to support the charge of sexual abuse in the third degree.

Accordingly, the charge of sexual abuse in the third degree is facially sufficient, and the motion to dismiss this charge is denied.

This opinion shall constitute the decision and order of the Court.

Dated: November 17, 2010______________________

New York, New YorkMatthew A. Sciarrino, Jr.

Judge of the Criminal Court