People v. Kittles
| Decision Date | 01 June 1979 |
| Citation | 423 N.Y.S.2d 107,102 Misc.2d 224 |
| Parties | PEOPLE of the State of N. Y. v. Michael KITTLES, Defendant. |
| Court | New York County Court |
Defendant moves to dismiss this indictment containing three counts of sexual abuse, first degree, and one count of attempted sexual abuse in the first degree, upon the ground that the acts alleged therein do not constitute a crime.
The only facts alleged to support counts 1 and 2 of the indictment are that the defendant on two occasions kissed the victim against her will and inserted his tongue in her mouth. Under the statute, sexual abuse in the first degree is committed when a person subjects another person to sexual contact by forcible compulsion (Penal Law Section 130.65, Subd. 1). Sexual contact means any "touching of the sexual or other intimate parts of a person . . . for the purpose of gratifying sexual desire of either party" (Penal Law Section 130.00, Subd. 3). The issues before the court are (1) whether the act constitutes a "touching" within the meaning of the statute; and (2) whether the mouth may be deemed "intimate" part of the body.
While the statute is broader in scope than its predecessor (People v. Blodgett, 37 A.D.2d 1035, 326 N.Y.S.2d 14), it has been held that it should be strictly construed and that the term "touching" applies only to " those instances where there is digital manipulation or manual handling or fondling (People v. Vicaretti, 54 A.D.2d 236, 388 N.Y.S.2d 410). In Vicaretti, supra, the court held that it was proper not to charge sexual abuse where the only evidence was that of a completed intercourse because the use of the word " touching" rather than mere contact, necessarily implied the use of one's hands either to fondle or manipulate. Vicaretti was not cited in Matter of David M., 93 Misc.2d 545, 403 N.Y.S.2d 178, where the court apparently reached a different conclusion. However, it appeared that the main issue in Matter of David M. was whether it was necessary to manipulate the sexual parts of the victim rather than the self-gratification of the abuser. In any event, this court feels constrained to follow the holding of the Appellate Division, even though it is not in our department (People v. Blount, 82 Misc.2d 964, 370 N.Y.S.2d 437).
There is the further issue as to whether the mouth is an "intimate" part of the body within the meaning of the statute. The term "intimate part" is not defined in the statute. Case law has held that a person's buttocks fall within that term. (People v. Thomas, 91 Misc.2d...
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Lujan v. State
..."touching" to apply only to those instances where there is digital manipulation or manual handling or fondling. People v. Kittles, 102 Misc.2d 224, 423 N.Y.S.2d 107 (1979). We think the definition of "touching" given by the court in Kittles to be consistent with a touching of the victim's v......
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People v. Darryl M.
...398 N.Y.S.2d 821 (1977); People v. Victor P., 120 Misc.2d 770, 466 N.Y.S.2d 572 (Crim.Ct.N.Y.Co., 1983). See also People v. Kittles, 102 Misc.2d 224, 423 N.Y.S.2d 107 (1979). Any reasonable person in our society would consider the acts here charged to be proscribed. Any reasonable person ha......
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Winner S., Matter of
...and the mouth, see People v. Rondon, 152 Misc.2d 1018, 579 N.Y.S.2d 319 (Crim.Ct., Queens, 1992); but see, People v. Kittles, 102 Misc.2d 224, 423 N.Y.S.2d 107 (Suffolk Co. Ct., ...
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People v. Rondon
...part, constituting the essential element of sexual abuse. This holding is in direct contrast to the holding of People v. Kittles, 102 Misc.2d 224, 423 N.Y.S.2d 107 (County Ct., Suffolk Co., Therefore, the facts pleaded in the information are sufficient to sustain the charge of Sexual Abuse ......