People v. Sene
| Decision Date | 06 October 2009 |
| Docket Number | 1120.,2850/06.,1121. |
| Citation | 66 A.D.3d 427,2009 NY Slip Op 7160,887 N.Y.S.2d 8 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WAHID SENE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Except for his claim that his conduct did not constitute sexual contact as defined in Penal Law § 130.00 (3), defendant's challenges to the sufficiency and weight of the evidence are attacks on the credibility of prosecution witnesses, and we find no basis for disturbing the jury's credibility determinations.
The conviction of sexual abuse in the first degree is premised on nonconsensual contact between defendant's mouth and the victim's neck. Penal Law § 130.00 (3) defines sexual contact as "any touching of the sexual or other intimate parts of a person . . . for the purpose of gratifying sexual desire of either party." Defendant argues that because the neck is not located in proximity to sexual organs and is not generally covered with clothing, it cannot be considered an intimate part of the body.
The Court of Appeals has cautioned against "hypertechnical or strained interpretations" of the sexual abuse statute (People v Ditta, 52 NY2d 657, 660 [1981]). We conclude that, under general societal norms, the neck qualifies as an intimate part because it is sufficiently personal or private that it would not be touched in the absence of a close relationship between the parties. Moreover, since "intimacy is a function of behavior and not merely anatomy," the manner and circumstances of the touching should also be considered (People v Graydon, 129 Misc 2d 265, 268 [Crim Ct, NY County 1985]), and we reject defendant's argument that to do so would conflate the sexual gratification element with the issue of whether a body part is an intimate part. Here, defendant stripped naked, climbed onto the sleeping victim, and licked her neck. This conduct clearly fell within "the plain, natural meaning" (People v Ditta, 52 NY2d at 660) of the statute. The court properly precluded defendant from eliciting testimony that he made an exculpatory statement in the course of the incident. This was essentially a factual assertion of his innocence constituting hearsay, and there was no relevant basis upon which to receive it other than for its truth (see People v Reynoso, 73 NY2d 816, 819 [1988]; People v Perry, 223 AD2d 479 [1996]). In any event, the precluded testimony was substantially similar to defendant's exculpatory...
To continue reading
Request your trial
-
People v. Dunham
...charged conduct (see Penal Law § 130.00[7] ; see People v. Wilson, 164 A.D.3d 1012, 1013–1014, 83 N.Y.S.3d 705 [2018] ; People v. Sene, 66 A.D.3d 427, 427–428, 887 N.Y.S.2d 8 [2009], lv denied 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921 [2010] ; People v. Fuller, 50 A.D.3d 1171, 1174, 8......
-
Commonwealth v. Gamby
...area that is touched, but also on the manner of touching, and the circumstances surrounding the touching. See, e.g., People v. Sene , 66 A.D.3d 427, 887 N.Y.S.2d 8, 9 (N.Y. Supreme Court 2009) ; People v. Graydon , 129 Misc.2d 265, 492 N.Y.S.2d 903, 906 (Crim. Ct. New York Cty. 1985). Under......
-
Livingston v. Brown
...party or through the testimony of a third person." People v. Haddock, 917 N.Y.S.2d 634, 635 (App. Div. 2010); see also People v. Sene, 887 N.Y.S.2d 8, 9 (App. Div. 2009) (holding that preclusion of defendant's exculpatory statement was proper, as it was "essentially a factual assertion of [......
-
State v. Acevedo-Giron
...to do so would conflate the sexual gratification element with the issue of whether a body part is an intimate part. People v. Sene, 887 N.Y.S.2d 8, 9 (App. Div. 2009). In two reported decisions, an appellate court ruled that kiss on the mouth could be the touching of an intimate part. Fort ......