People v. Ditta

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: COOKE
• Citation: People v. Ditta, 52 N.Y.2d 657, 439 N.Y.S.2d 855, 422 N.E.2d 515 (N.Y. 1981)
• Decision Date: 12 May 1981
• Parties: , 422 N.E.2d 515 The PEOPLE of the State of New York, Respondent, v. John DITTA, Appellant.

Page 855

439 N.Y.S.2d 855

52 N.Y.2d 657, 422 N.E.2d 515

The PEOPLE of the State of New York, Respondent, v. John DITTA, Appellant.

Court of Appeals of New York.

May 12, 1981.

Spiros A. Tsimbinos, Kew Gardens, for appellant.

John Santucci, Dist. Atty. (Ivan K. Chesler, East Rockaway, of counsel), for respondent.

OPINION OF THE COURT

COOKE, Chief Judge.

Presented for review is the question whether a defendant may be convicted of sexual abuse in the first degree (Penal Law, § 130.65) where he compels another person to touch his sexual or other intimate parts. For reasons that follow, such conduct constitutes sexual abuse.

On the morning of March 15, 1978, the 16-year-old victim was hurriedly walking to school to avoid arriving late. Suddenly, she was accosted by a man riding a motorcycle, later identified as defendant John Ditta. Defendant flashed a badge, which the young woman thought was a police shield, and blocked her path with the motorcycle and his own body. Seeing a knife in his pocket, the victim feared for her life and decided to comply with defendant's commands.

Ditta placed his jacket on the ground, got down and directed the victim to get on top of him. He then displayed the knife and threatened to kill her if she did not do what he wanted. The victim was instructed to feel defendant's crotch area. She testified that she felt as directed for a few minutes, that the area was hard and that defendant's pants were wet. The young woman then blacked out.

A short time later the police arrived on the scene, having been summoned by a local resident who witnessed many of the events, took down defendant's license plate number and later testified at trial. The officers, armed with the license number, placed the victim in the patrol car and cruised the area. Five or six blocks away, they spotted defendant on the motorcycle and, after a short chase, apprehended him. He was in possession of a knife and his wallet contained a Department of Sanitation shield. One of the officers observed a wet spot on defendants pants in the crotch area. After a nonjury trial, defendant was convicted of sexual abuse, first degree, second degree unlawful imprisonment, criminal possession of a weapon in the fourth degree endangering the welfare of a minor and menacing. The Appellate Division, 77 A.D.2d 604, 429 N.Y.S.2d 979, affirmed, without opinion.

On this appeal, defendant's principal argument is that, because of the terminology of the sexual abuse provision, a person is not guilty of that crime unless he or she touches the sexual or intimate parts of another person. Forcing the other person to touch the defendant's sexual parts does not amount to sexual abuse, according to defendant.

Sexual abuse in the first degree is committed when a person "subjects another person to sexual contact * * * forcible compulsion" (Penal Law, § 130.65). Sexual contact is defined as "any touching of the sexual or other intimate parts of a person not married to the actor" (Penal Law, § 130.00, subd. 3). In essence, defendant would have the court "strictly construe" the word actor as requiring that the individual charged be the one who touches the other person. The invitation to adopt this grudging interpretation of the statute must be declined. Criminal liability is imposed under section 130.65, not under section 130.00, the definitional section.

Initially, it should be emphasized that the common-law policy of strictly construing a penal code no longer obtains in this State. The Legislature expressly abolished that rule, and ordained instead that the provisions of the Penal Law be interpreted "according to the fair import of their terms to promote justice and effect the objects of the law" (Penal Law, § 5.00). Although this rule obviously does not justify the imposition of criminal sanctions for conduct that falls beyond the scope of the Penal Law (e. g., People v. Sansanese, 17 N.Y.2d 302, 306, 270 N.Y.S.2d 607, 217 N.E.2d 660; People v. Wood, 8 N.Y.2d 48, 51, 201 N.Y.S.2d 328, 167 N.E.2d 736, it does authorize a court to dispense with hypertechnical or strained interpretations of the statute (see, e. g., People v. Abeel, 182 N.Y. 415, 420-422, 75 N.E. 307). Thus, conduct that falls within the plain, natural meaning of the language of a Penal Law provision may be punished as criminal.

Mindful of these considerations, we begin our inquiry by examining section 130.65, the substantive sexual abuse provision. That statute prohibits a person from subjecting another to sexual contact. Nowhere does the section prescribe which person must perform the actual touching. On its face, it is broad enough to encompass sexual touching of the victim by the...