People v. Thomas, AP-7

• Decision Date: 17 October 1977
• Docket Number: AP-7
• Citation: 398 N.Y.S.2d 821,91 Misc.2d 724
• Parties: The PEOPLE of the State of New York v. James THOMAS, Defendant
• Court: New York City Court

Page 821

398 N.Y.S.2d 821

91 Misc.2d 724

The PEOPLE of the State of New York v. James THOMAS, Defendant.

Criminal Court of the City of New York, New York County, Part AP-7.

Oct. 17, 1977.

Robert M. Morgenthau, Dist. Atty., County of New York, New York City, for the People; James R. Stevens, New York City, of counsel.

Martin Erdmann, The Legal Aid Society, New York City, for defendant; Gary Nicolosi, Brooklyn, of counsel.

BENJAMIN ALTMAN, Judge:

Is the buttock a "private part" of a female? This is the question raised by the defendant. The defendant has moved to dismiss the misdemeanor complaint for its failure to state a reasonable cause for prosecution under Penal Law 130.55, sexual abuse in the third degree.

The factual situation is not disputed and is as follows:

The defendant, James Thomas, is charged with touching the buttocks of a female, Barbara Starkey, without her consent, while the defendant and Mrs. Starkey were riding a rush hour IRT train on a Friday, September 9.

The defendant was arrested by a transit patrolman. The defendant was arraigned before this court and charged with violating Penal Law 130.55, sexual abuse in the third degree.

The complaint sworn to by the officer states:

"Deponent observed defendant touch the private part to wit the buttocks of a female Barbara Starkey without her consent."

The defendant contends that the buttock is not an "intimate part" of a person within Penal Law 130.00(3). Without the buttocks being considered an intimate part, no crime of sexual abuse can have occurred.

The novel approach of the defendant is that since the buttocks are not located in the genital area, is not a reproductive organ nor a breast, it cannot be considered "private parts."

The defendant supports his position with an analogy to the oft cited case of People v. Groszman-Bagrati, 202 N.Y.S.2d 572 (City Ct.1960), which predates the current statute. ^* The defendant also utilizes the Practice Commentaries authored by Arnold Hechtman, immediately following the statute (McKinney's Consolidated Laws, Book 39, p. 486). Both the case and the commentaries exclude "buttocks" from their definitions of private parts. They do include "breast" and "genital areas" in their definitions.

The prosecution stresses case law which includes the "buttock" as a "private part."

The issue then presents itself: is the anatomical part of the human known as the "buttocks" a private part within the purview of Penal Law § 130.55 and does touching of the buttocks constitute sexual contact under Penal Law § 130.00(3)?

Before we proceed, it would be helpful to set forth certain relevant statutes and define certain concepts.

The two statutes most directly involved here are Penal Law §§ 130.00(3), 130.55.

130.00(3) defines "sexual contact" and states:

" 'Sexual contact' means any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party."

130.55 sets forth the crime of sexual abuse in the third degree. The relevant part states:

"A person is guilty of sexual abuse in the third degree when he subjects another person to sexual contact without the latter's consent . . ."

The buttocks may be defined as:

"Either of the two rounded prominences separated by a median cleft that form the lower part of the back in man and consists largely of the gluteus muscles." (Webster's Third New International Dictionary.)

The offense of sexual abuse (presently Penal Law §§ 130.55-130.65) is derived from the Former Penal Law §§ 483-a and 483-b. ^** As it applies to adult victims, the offense of sexual abuse is a newly defined offense.

People v. Groszman-Bagrati, 202 N.Y.S.2d 572 (City Ct. 1960), represents an interpretation of the former statute.

There, the defendant was charged with unlawfully carnally abusing the body of a boy over the age of ten and under the age of sixteen. In part the defendant was charged with placing his hand "on said Terrence Convoy's private parts and did smell his feet and anus."

The court stated at page 575:

"It is the Court's opinion that the word 'sexual', as used in the statute here under analysis, modifies both 'parts' and 'organs' and that same is to be construed in the sense of normal or ordinary usage of the parts or organs of the body. If so defined it is impossible to contend or conclude that the feet or the anus are 'sexual' parts or organs. The mere fact that they might be divested from their normal functions into abnormal uses would not, in this Court's judgment, convert them into 'sexual' parts or organs for present purposes."

This case reflected an accurate interpretation of the statute at that time. Modification of the offense through the sexual abuse statute of the revised Penal Law causes the Groszman-Bagrati decision not to be viable under the case currently under consideration here. The area of the proscribed conduct under §§ 483-a and 483-b has been increased under the adoption of the Revised Penal Law.

This broadening of conduct deemed prohibited by the sexual abuse statute is apparent in recent case law.

People v. Blodgett, 37 A.D.2d 1035, 326 N.Y.S.2d 14, clarifies the situation. The decision was rendered in 1971 after §§ 130.00, subd. 3, 130.55 were enacted.

"Under prior law (Penal Law §§ 483-a, 483-b), the language 'sexual parts or organs' was used. The courts have construed this language to mean the organs of human reproduction (People v. Belcher, 299 N.Y. 321, 87 N.E.2d 278). It is apparent from a history of these statutes that the legislature intended the phrase, 'sexual contact' to be no longer restricted to the reproductive organs . . ."

My esteemed colleague, Judge Haft, in People v. Teicher (Supreme Court, New York County, decided May 31, 1977, unreported), discusses the concept of sexual contact.

The situation involved female patients who had been anesthetized by the defendant, a dentist. The defendant was subsequently charged with sexual abuse in the first degree (Penal Law § 130.65(2)). The term "sexual contact" is used within that offense as it is in the offense of sexual abuse in the third degree (as the defendant is charged in the matter presently before this court).

Judge Haft in his decision (p. 5) stated "Each (patient) was 'out' or 'unconscious' and, upon coming to a semi-conscious state, discovered the defendant-dentist engaged in touching their breasts, buttocks or other private intimate parts. This conduct would clearly fall within the scope of activity proscribed by the statute." (emphasis added)

The conclusion reached by Judge Haft is the touching of the buttocks without consent can constitute "sexual contact" under the sexual abuse statute.

The Practice Commentaries by Arnold Hechtman (McKinney's Consolidated Laws of New York, Book 39, p. 446) also shows the expansion intended by the legislature.

"Subdivision three (the definition of sexual contact), by including 'intimate parts' as well as 'sexual parts' represents an expansion of the proscribed activity." (emphasis added)

From the above, it is very apparent that "sexual contact" is no longer restricted to the reproductive organs, and that the buttocks may be considered an intimate part under the sexual abuse statute.

The defendant suggests that if any crime was...