People v. Mack

• Decision Date: 22 March 2012
• Citation: 18 N.Y.3d 929,942 N.Y.S.2d 457,2012 N.Y. Slip Op. 02124,965 N.E.2d 959
• Parties: The PEOPLE of the State of New York, Appellant, v. Jason MACK, Respondent.
• Court: New York Court of Appeals Court of Appeals

18 N.Y.3d 929
2012 N.Y. Slip Op. 02124
942 N.Y.S.2d 457
965 N.E.2d 959

The PEOPLE of the State of New York, Appellant,
v.
Jason MACK, Respondent.

Court of Appeals of New York.

March 22, 2012.

[942 N.Y.S.2d 458]

Cyrus R. Vance, Jr., District Attorney, New York City (Vincent W. Rivellese and Hilary Hassler of counsel), for appellant.

Dratel & Mysliwiec, P.C., New York City (Alice L. Fontier of counsel), for respondent.

[18 N.Y.3d 930] OPINION OF THE COURT MEMORANDUM.

[965 N.E.2d 960] The order of the Appellate Division should be affirmed.

During the morning rush hour on March 22, 2002, a teenage girl on her way to school got on a packed subway train in Manhattan. She stood just inside the train's door as a tall and “very heavy” man “pushed himself in so [that] he was behind” her. Once the doors closed and the train started to move, the girl felt some “weird movements” on her lower back, which she attributed to the swaying of the train and the press of passengers. When she turned in the man's direction, though, the touching sensation stopped; it resumed when she turned back around. She tried to “move more to [her] right” to avoid this man, but she was hemmed in by the crush of commuters. The man left the train one station after he got on. When the girl eventually got off the train, she noticed semen on her jeans and coat. Upon her arrival at school, she reported the incident to school officials, who called the police.

Although the police developed a DNA profile from the semen on the girl's clothing right away, a suspect was not immediately [18 N.Y.3d 931] identified. Then in 2007, defendant Jason Mack's DNA was added to the State's DNA data bank. An employee of the Office of the Chief Medical Examiner of the City of New York matched the DNA recovered from the girl's clothing to defendant's genetic profile. Defendant was subsequently charged by the grand jury with one count of first-degree sexual abuse (a class D felony) for the acts committed against the girl, as well as a count of third-degree sexual abuse (a class B misdemeanor) for an incident in 2006 involving another victim.

Defendant asked Supreme Court to inspect the grand jury minutes and to dismiss or reduce the first-degree count, arguing that the evidence did not establish the use of force. As relevant here, a person is guilty of first-degree sexual abuse “when he or she subjects another person to sexual contact ... [b]y forcible compulsion” (Penal Law § 130.65[1] ); and forcible compulsion...