Opinion
No. 570154/19
09-08-2023
The People of the State of New York, Respondent, v. Virgilio Tovar, Defendant-Appellant.
Unpublished Opinion
PRESENT: Brigantti, J.P., Tisch, James, JJ.
PER CURIAM.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James G. Clynes, J. at plea; Herbert J. Moses, J., at sentencing), rendered on November 14, 2018, convicting him, upon his plea of guilty, of forcible touching, and imposing sentence.
Judgment of conviction (James G. Clynes, J. at plea; Herbert J. Moses, J. at sentencing), rendered on November 14, 2018, affirmed.
We find unavailing defendant's challenge to the facial sufficiency of the accusatory instrument. Even accepting defendant's contention that the Penal Law § 130.52(1) forcible touching charge to which he pleaded was defective for failing to satisfy the "forcible" component of the crime (see People v Zaragoza, 195 A.D.3d 522 [2021]), the accusatory instrument was jurisdictionally sufficient to support his plea because it contained an equal grade offense properly pleaded (People v Thiam, 34 N.Y.3d 1040, 1049 [2019]; People v Then, 73 Misc.3d 147 [A], 2021 NY Slip Op 51267[U] [App Term, 1st Dept 2021], lv denied 38 N.Y.3d 954 [2022]), namely the class A misdemeanor of forcible touching pursuant to Penal Law § 130.52(2).
Subdivision 2 of Penal Law § 130.52 provides that a person is guilty of forcible touching when he, with the requisite purpose and intent, subjects another person to "sexual contact," a term defined as "any touching" of the sexual or intimate parts of a person (Penal Law § 130.00[3]), while such person is a passenger on a bus, train, or subway car. "Here, the information stated that while riding on a Metro-North train, complainant observed defendant's hand in between [her] legs, touching [her] inner thigh," without her consent. Given defendant's waiver of prosecution by information (see People v Dumay, 23 N.Y.3d 518, 522 [2014]), these allegations were sufficient to provide reasonable cause to believe that defendant "subject[ed] another person to sexual contact... while such other person [was] a passenger on a... train" (Penal Law § 130.52[2]). Defendant's "purpose of gratifying [his] sexual desire and... intent to degrade or abuse" the victim (id.) is reasonably inferred from his conduct and the surrounding circumstances, including the intimate nature of the act done without complainant's consent on a passenger train, and the humiliation evoked by such conduct (see People v Hatton, 26 N.Y.3d 364, 370-371 [2015]).
Contrary to defendant's contention, complainant's identification of defendant as the perpetrator was based upon her personal observation of defendant and was nonconclusory. Any further challenge to the identification of defendant was a matter to be raised at trial, not by insistence that the instrument was jurisdictionally defective (see People v Konieczny, 2 N.Y.3d 569, 577 [2004]; People v Gonzalez, 76 Misc.3d 130 [A], 2022 NY Slip Op 50880[U] [App Term, 1st Dept 2022], lv denied 39N.Y.3d 1078[2023]).
The decision and order of this Court dated April 25, 2023 (78 Misc.3d 131[A], 2023 NY Slip Op 50375[U]) is hereby recalled and vacated.
All Concur