People v. Mack

CourtNew York Supreme Court Appellate Division
Writing for the CourtCATTERSON
Citation76 A.D.3d 877,908 N.Y.S.2d 181
Decision Date21 September 2010
PartiesThe PEOPLE of the State of New York, Appellant, v. Jason MACK, Defendant-Respondent.
908 N.Y.S.2d 181
76 A.D.3d 877


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


Supreme Court, Appellate Division, First Department, New York.

Sept. 21, 2010.

908 N.Y.S.2d 182

Robert M. Morgenthau, District Attorney, New York (Marc Krupnick of counsel), for appellant.

Alice L. Fontier, New York, for respondent.

ANDRIAS, J.P., CATTERSON, RENWICK, DeGRASSE, MANZANET-DANIELS, JJ.

76 A.D.3d 878

Order, Supreme Court, New York County (Renee A. White, J.), entered on or about February 17, 2009, which, upon an inspection of grand jury minutes, granted defendant's motion to dismiss an indictment charging sexual abuse in the first degree, affirmed.

Defendant was charged with sexual abuse in the first and third degrees under a prior indictment. By the first-degree sexual abuse count it was alleged that on March 22, 2002 defendant subjected another to sexual contact by forcible compulsion.1 Upon defendant's motion and after inspecting the grand jury minutes, the court reduced the first-degree sexual abuse charge to another charge of third-degree sexual abuse. The court based its determination upon a finding that the evidence was insufficient to establish the element of forcible compulsion. The case based on the March 22, 2002 incident was resubmitted to a new grand jury and defendant was again charged with first-degree sexual abuse by way of the instant one-count indictment. This appeal stems from the court's dismissal of the indictment on the same ground, i.e., insufficient evidence of forcible compulsion.2

It is alleged that defendant rubbed his penis against the then 14-year old complainant's lower back while standing behind her on a crowded subway car. The complainant testified that she felt "weird movements" which stopped each of the three times she turned around. She "kind of figured it was just because the train was moving really fast and it was really crowded." When asked if she tried to get away from defendant, the complainant further testified that she couldn't because the train was crowded and seats were to her immediate right. The complainant also gave the following testimony: "I felt the movement. I didn't know actually what was going on until I was ready to leave the train, and I pulled my sleeve down and I wiped myself and I noticed that there was semen on my jeans and on my coat."

The standard on a motion to dismiss an indictment on the ground that the evidence before the grand jury was not legally sufficient to establish the offense charged is whether there was "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission

76 A.D.3d 879
thereof" ( People v. Warner-Lambert Co., 51 N.Y.2d 295, 298-299, 434 N.Y.S.2d 159, 414 N.E.2d 660 [1980], cert. denied 450 U.S. 1031, 101 S.Ct. 1742, 68 L.Ed.2d 227 [1981]; CPL 70.10[1] ). Forcible compulsion, as an element of a sex offense, means
908 N.Y.S.2d 183
"(a) use of physical force; or (b) a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped" (Penal Law § 130.00[8] ). The People posit that defendant used "physical force and threat of force" to commit the act of sexual abuse. We thus assume that the People have invoked both statutory theories.

While the conduct described in the grand jury presentation was reprehensible, the evidence was legally insufficient to establish the use of physical force. Instead, it established the use of stealth to commit the crime. We base this conclusion upon the complainant's testimony that defendant stopped making the movements each time she turned around as well as her testimony that she did not know what had occurred until she discovered the semen on her clothing. Citing People v. Del Campo, 281 A.D.2d 279, 722 N.Y.S.2d 148 [2001], lv. denied 97 N.Y.2d 640, 735 N.Y.S.2d 497, 761 N.E.2d 2 [2001], the People argue that defendant used physical force by pinning the complainant in the crowded subway car so that she could not move. Del Campo is plainly distinguishable because the defendant in that case forcibly limited his victim's freedom of movement by lifting her off the ground ( id.). That is a far cry from the furtive behavior described by the complainant in this case. We, therefore, reject the People's theory that legally sufficient evidence of physical force was presented to the grand jury.

Equally unavailing is the theory that defendant used his superior size and age to intimidate the complainant. Although the complainant testified in conclusory fashion that she felt threatened, the grand jury was not presented with detailed facts to support the claim ( cf. People v. Mirabal, 278 A.D.2d 526, 527, 717 N.Y.S.2d 404 [2000] ). More to the point, the grand jury heard no evidence from which it could have been inferred that the complainant was placed in fear of immediate death, physical injury or kidnapping as required by Penal Law § 130.00(8).

All concur except ANDRIAS, J.P. and CATTERSON, J. who dissent in a memorandum by CATTERSON, J. as follows:

CATTERSON, J. (dissenting).

In my opinion, the evidence in this case may not be sufficient to convict the defendant after trial. However, the evidence presented to the grand jury was nonetheless legally sufficient to establish the element of forcible compulsion, and hence the court erred in reducing the charge of first-degree sexual abuse. Therefore, I respectfully dissent. The Court

76 A.D.3d 880
of Appeals has held that, when reviewing the dismissal of an indictment, the standard of "legally sufficient means prima facie...

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4 practice notes
  • Umeze v. Fidelis Care N.Y.
    • United States
    • New York Supreme Court Appellate Division
    • 21 September 2010
    ...here, the plaintiff has failed to produce any actual evidence of alleged noncompliance; nor has he proffered any evidence of an attempt76 A.D.3d 877to avail himself of any of the available remedies, for example, moving to compel deposition. See Kent v. Maschio, 26 A.D.2d 644, 644, 272 N.Y.S......
  • Cirone v. Tower Ins. Co. of N.Y.
    • United States
    • New York Supreme Court Appellate Division
    • 21 September 2010
    ...counsel's attempt to negotiate a judgment two times higher than the policy limits showed further evidence of bad faith. Thus, plaintiffs908 N.Y.S.2d 181were not seeking to relitigate the declaratory judgment action between Tower and its insured, but rather to obtain recovery for the amount ......
  • People v. Mack
    • United States
    • New York Court of Appeals
    • 22 March 2012
    ...the reduced charge in the original indictment. Upon the People's appeal, the Appellate Division affirmed, with two Justices dissenting (76 A.D.3d 877, 908 N.Y.S.2d 181 [1st Dept.2010] ). The court remarked that “[w]hile the conduct described in the grand jury presentation was reprehensible,......
  • People v. Mack
    • United States
    • New York Court of Appeals
    • 18 January 2011
    ...N.Y.3d 739942 N.E.2d 314The PEOPLE etc., Appellant,v.Jason MACK, Respondent.Court of Appeals of New York.Jan. 18, 2011. Reported below, 76 A.D.3d 877, 908 N.Y.S.2d 181. Motion for assignment of counsel granted and Alice L. Fontier, Esq., 2 Wall Street, 3rd Floor, New York, N.Y. 10005 assign......
4 cases
  • Umeze v. Fidelis Care N.Y.
    • United States
    • New York Supreme Court Appellate Division
    • 21 September 2010
    ...here, the plaintiff has failed to produce any actual evidence of alleged noncompliance; nor has he proffered any evidence of an attempt76 A.D.3d 877to avail himself of any of the available remedies, for example, moving to compel deposition. See Kent v. Maschio, 26 A.D.2d 644, 644, 272 N.Y.S......
  • Cirone v. Tower Ins. Co. of N.Y.
    • United States
    • New York Supreme Court Appellate Division
    • 21 September 2010
    ...counsel's attempt to negotiate a judgment two times higher than the policy limits showed further evidence of bad faith. Thus, plaintiffs908 N.Y.S.2d 181were not seeking to relitigate the declaratory judgment action between Tower and its insured, but rather to obtain recovery for the amount ......
  • People v. Mack
    • United States
    • New York Court of Appeals
    • 22 March 2012
    ...the reduced charge in the original indictment. Upon the People's appeal, the Appellate Division affirmed, with two Justices dissenting (76 A.D.3d 877, 908 N.Y.S.2d 181 [1st Dept.2010] ). The court remarked that “[w]hile the conduct described in the grand jury presentation was reprehensible,......
  • People v. Mack
    • United States
    • New York Court of Appeals
    • 18 January 2011
    ...N.Y.3d 739942 N.E.2d 314The PEOPLE etc., Appellant,v.Jason MACK, Respondent.Court of Appeals of New York.Jan. 18, 2011. Reported below, 76 A.D.3d 877, 908 N.Y.S.2d 181. Motion for assignment of counsel granted and Alice L. Fontier, Esq., 2 Wall Street, 3rd Floor, New York, N.Y. 10005 assign......

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