People v. Hatton
| Decision Date | 23 November 2015 |
| Docket Number | No. 157,157 |
| Citation | 44 N.E.3d 188,2015 N.Y. Slip Op. 08606,26 N.Y.3d 364,23 N.Y.S.3d 113 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Frankie HATTON, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove and Seth M. Lieberman of counsel), for appellant.
Seymour W. James, Jr., The Legal Aid Society, New York City (Arthur H. Hopkirk of counsel), for respondent.
RIVERA
, J.
The People appeal from an order of the Appellate Term reversing defendant Frankie Hatton's conviction of one count of forcible touching, and dismissing the accusatory instrument as jurisdictionally defective. We conclude the instrument sets forth sufficient factual allegations to establish the elements of the offense, and therefore reverse the order of the Appellate Term and reinstate defendant's conviction.
Defendant was originally arraigned on three accusatory instruments, each charging him with two counts of forcible touching (Penal Law § 130.52
), sexual abuse in the third degree (Penal Law § 130.55 ) and harassment in the second degree (Penal Law § 240.26[1] ). The separate instruments contained almost identical factual allegations that defendant smacked the buttocks of two different women, for a total of six complainants, over the course of three weeks. The instruments differed only in the date, time and location of the incidents and the respective complainant's name. The People subsequently filed supporting depositions, and, upon motion, Criminal Court consolidated the three accusatory instruments.
Criminal Court sentenced defendant to a one-year jail sentence, which he has since then completed.
On appeal, the Appellate Term reversed the conviction and dismissed the accusatory instrument based on factual insufficiency grounds (42 Misc.3d 141
[A], 2014 N.Y. Slip Op. 50213[U], 2014 WL 683880 [App.Term, 2d Dept., 2d, 11th & 13th Jud.Dists.2014] ). A Judge of this Court granted leave to appeal (23 N.Y.3d 1063, 994 N.Y.S.2d 322, 18 N.E.3d 1143 [2014] ).
As an initial matter, we consider the People's contention that defendant impliedly waived his right to be prosecuted by information. Whether a defendant has waived a procedural right is a factual question which this Court may review only to determine if the record provides any support for the determination of a lower court (People v. Brown, 90 N.Y.2d 872, 874, 661 N.Y.S.2d 596, 684 N.E.2d 26 [1997]
; People v. Ferguson, 67 N.Y.2d 383, 389, 502 N.Y.S.2d 972, 494 N.E.2d 77 [1986] ).
The parties agree that on the day of his arraignment, defendant's counsel appeared on behalf of someone else, on a matter unrelated to defendant's case. Outside of defendant's presence, she then responded “Yes” in open court to the court officer's question, “Counsel, do you waive the reading of the rights and charges, but not the rights thereunder for this case and all other cases before the court?” Several months later, defendant
pleaded guilty, in satisfaction of the consolidated instruments. The People contend that the combination of this one-word statement by counsel and defendant's entry of a guilty plea effectuated an implied waiver of defendant's right to prosecution by information.
In People v. Connor, 63 N.Y.2d 11, 479 N.Y.S.2d 197, 468 N.E.2d 35 (1984)
this Court stated that a waiver of the mandated reading of the right does not “by itself constitute a waiver of the procedural right to be tried on information” (id. at 14 n. *, 479 N.Y.S.2d 197, 468 N.E.2d 35 ; People v. Fernandez, 20 N.Y.3d 44, 55 n. 1, 956 N.Y.S.2d 443, 980 N.E.2d 491 [2012] ). However, “waiver and consent may be implied if the circumstances ... compel the conclusion that the defendant, competently represented by counsel, acquiesced in the prosecution of the charge against him on the misdemeanor complaint” (Connor, 63 N.Y.2d at 14, 479 N.Y.S.2d 197, 468 N.E.2d 35 ). In People v. Weinberg, 34 N.Y.2d 429, 431, 358 N.Y.S.2d 357, 315 N.E.2d 434 (1974), the Court made clear that waiver of this right must be knowing and intelligent.
Here, defendant's counsel stated in open court that she waived only the reading of the rights, but not “the rights thereunder.” Therefore, under Connor, her statement cannot serve as a waiver of defendant's procedural right to be tried on information (Connor, 63 N.Y.2d at 14 n. *, 479 N.Y.S.2d 197, 468 N.E.2d 35
). More to the point, counsel's statement specifically preserved his right to prosecution by information. Regardless, unlike the defendant in Connor, nothing in the record indicates that in the wake of counsel's statement defendant acted affirmatively to waive his right, or that he “acquiesced in the prosecution of the charge against him on [a] misdemeanor complaint” (id. at 14, 479 N.Y.S.2d 197, 468 N.E.2d 35 [] ).
Additionally, several days after arraignment the People filed two superseding instruments, six supporting depositions (one from each of the complainants) and a deposition by an eyewitness to the incident defendant eventually pleaded guilty to. Criminal Court recorded these filings as supporting depositions and superseding informations. By all appearances, defendant was, in fact, prosecuted by information. Under these circumstances, record support exists for the Appellate Term's conclusion that defendant did not impliedly waive his right to prosecution by information.
As a consequence, we assess the sufficiency of the accusatory instrument based on the standard applicable to an information.
Under that standard, the factual part of the instrument must establish reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information (CPL 100.40[1][b]
), and must contain “ ‘nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof’ ” (People v. Dumay, 23 N.Y.3d 518, 522, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014]
, citing People v. Kalin, 12 N.Y.3d 225, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009] ; CPL 100.40[1][c] ). Where the information fails to meet this requirement it is jurisdictionally defective (Kalin, 12 N.Y.3d at 228–229, 878 N.Y.S.2d 653, 906 N.E.2d 381 ). As this Court stated in People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000) [citations omitted], “[s]o 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.”
The People claim that the accusatory instrument is facially sufficient because the factual allegations and the reasonable inferences to be drawn from them establish all the elements of the offense of forcible touching. Under Penal Law § 130.52
, “[a] person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other 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.” Furthermore, Penal Law § 130.05 requires that the act be committed without the victim's consent, meaning that “the victim does not expressly or impliedly acquiesce in the actor's conduct” (Penal Law § 130.05[2][c] ; see also § 130.05 [1 ] ).
Here, the factual allegations easily satisfy the facial sufficiency standard for the actus reus elements of the offense. As this Court held in People v. Guaman, 22 N.Y.3d 678, 684, 985 N.Y.S.2d 209, 8 N.E.3d 324 (2014)
, “when done with the relevant mens rea, any bodily contact involving the application of some level of pressure to the victim's sexual or intimate parts qualifies as a forcible touch within the meaning of Penal Law § 130.52.” Thus, the information's assertion that defendant “smacked the buttocks” of the complainant, more than adequately alleges that defendant applied the statutorily required pressure to effectuate contact with a part of complainant's body commonly accepted within society as sexual or intimate in nature (see
id. at 684, 985 N.Y.S.2d 209, 8 N.E.3d 324 ; People v. Darryl M., 123 Misc.2d 723, 735, 475 N.Y.S.2d 704 [Crim.Ct., N.Y. County 1984] [] ).
The factual allegations also sufficiently establish the complainant's lack of consent within the meaning of Penal Law § 130.05(2)(c)
. The instrument asserts that defendant approached the complainant and smacked her buttocks on a public street intersection, late at night, which caused her “to become alarmed and annoyed.” The reasonable inferences to be drawn from these allegations are that defendant initiated the conduct and took the complainant by surprise. Also, the allegation that defendant's actions “alarmed and annoyed” the complainant...
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