The Nassau County police made an announcement that they had arrested a New York City police detective for an alleged sex crime. Apparently, they had arrested a New York City police detective for making sexual contact with a female dancer at a strip club in an Island Park.
According to the complaining witness, the defendant detective asked her to have sex with him and to hang out in Brooklyn with his other police friends; she answered no but the detective kept buying her drinks and asking for sex; she kept telling him no and he kept trying to touch her body; she went on stage to dance and they kept looking at each other; she closed her eyes and began to dance; when she opened her eyes, the detective was on the stage; he put his hand on her breast and then put his hand inside her vagina; and she then leaned against the mirror and started to cry.
The defendant detective was charged in the information for violation of the Penal Law § 130.52, forcible touching; a sex crime. Under the law, a person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor’s sexual desire. Forcible touching includes squeezing, grabbing or pinching.
Thereafter, the defendant moved for an order of the court, pursuant to CPL 170.30 (1) (a), dismissing the information upon the grounds that it is defective within the meaning of CPL 170.35; alternatively, a dismissal of the information, pursuant to CPL 170.40, in the interests of justice.
On defendant’s motion to dismiss on sufficiency grounds:
The acts specifically enumerated in the forcible touching statute, squeezing, grabbing or pinching are not exclusive but intended to serve as examples of the type of conduct prohibited. To the extent that squeezing, grabbing or pinching are provided as exemplars by the Legislature of actions involving the requisite use of physical force to establish forcible touching, here, the conduct alleged to have been engaged in by the defendant similarly meets this threshold.
According to the defendant, the information is facially insufficient by reason of its failure to detail the acts or conduct which would constitute forcible compulsion, that is, the compulsion of the complaining witness through the use of some power, threat or violence; and that forcible compulsion is a necessary element of forcible touching.
Notably, forcible touching is a new crime which was passed after several groping incidents during the 2000 Puerto Rican Day parade in New York City. This new crime was initially the subject of judicial disagreement, with the judges on one side of the disagreement taking a position which would support the instant defendant’s position. There was never any appellate resolution of this split of trial level opinion. However, this was primarily because the issue was addressed legislatively. The Legislature amended the statute, so as to close the gap perceived by the judges.
Under Penal Law § 130.05 (1), whether or not specifically stated, it is an element of every offense defined in the article that the sexual act was committed without consent of the victim. Penal Law § 130.05 (2), as amended, now states that lack of consent results from forcible compulsion; or incapacity to consent; or where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor’s conduct. Thus, forcible compulsion is now specifically legislatively provided to be, in forcible touching prosecutions, but one of three manners in which lack of consent may result. Facts showing forcible compulsion need not be elicited in an information charging a violation of Penal Law § 130.52 in order for the same to be facially sufficient. Lack of consent can be established directly through the affidavit of the complainant or by circumstantial evidence.
In the case at bar, for the purposes of determining facial sufficiency of the information, the allegations are obviously sufficient to support the element of lack of consent. Clearly, the information adequately alleges the crime of forcible touching.
On defendant’s motion to dismiss in the interests of justice:
Under CPL 170.40 (1), a criminal charge against a defendant may be dismissed in the interest of justice when, even though there may be no basis for dismissal as a matter of law, such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in injustice. However, this judicial discretion is limited. In determining whether such compelling factor, consideration, or circumstance exists, the court must, to the extent applicable, examine and consider, individually and collectively: the seriousness and circumstances of the offense; the extent of harm caused by the offense; the evidence of guilt, whether admissible or inadmissible at trial; the history, character and condition of the defendant; any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; the purpose and effect of imposing upon the defendant a sentence authorized for the offense; the impact of a dismissal on the safety or welfare of the community; the impact of a dismissal upon the confidence of the public in the criminal justice system; where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; and any other relevant fact indicating that a judgment of conviction would serve no useful purpose. It has been repeatedly held by the Appellate Division that a trial court is to exercise this discretion sparingly.
According to the defendant, he was victimized by a circumstance which occurred at an adult entertainment club, where patrons are teased, sexually aroused and made to buy and consume large amounts of alcohol; he was enticed by an exotic dancer into consuming large amounts of alcohol, manipulated by that exotic dancer into a physical and flirtatious encounter with the dancer’s goal being the extraction of tips, and that what occurred was a physical interaction initiated by the complainant regarding which there was at most a miscommunication regarding its extent; he is a decorated police veteran and a dedicated family man, whose conviction would jeopardize his livelihood and, consequently, the well-being of the community he serves and protects; the complainant suffered no harm other than the loss of a customer; and that to visit draconian consequences upon a dedicated public servant, as the result of a misunderstanding at a strip club would, have a negative impact upon the public’s confidence in the criminal justice system.
According to the District Attorney, the defendant had a prior criminal conviction for driving while intoxicated; as a result of the incident, the complainant felt humiliated and degraded, left her job, and due to the defendant’s law enforcement status, felt such fear for her safety that she has moved to another state; a conviction of the defendant would send a strong message that engaging in a sexual act without the complainant’s consent, even in the context of adult entertainment establishments, is unacceptable and will be dealt with strongly; a dismissal of the case would most likely cause the public to lose confidence in the criminal justice system and, especially, in the police force; although some individuals are critical of the adult entertainment business, committing sex offenses against anyone is unconscionable, and it is even more reprehensible when the offense is committed by a police officer; and a dismissal of the case would send a particularly inappropriate message to all concerned.
In opposition, the defendant claimed that the District Attorney is seeking to hold the defendant to a higher standard, and to hold him out as a trophy due to his employment as a police detective.
Regardless of the defendant’s heartfelt arguments, the applicable precedent makes it clear that it is only a jury, and not the court, which is afforded the discretion to grant the defendant’s request. The allegedly ambiguous circumstances of the incident which led to the forcible touching charge against the defendant have been held, in other cases involving alleged sex crimes, insufficient, in reviewing the aforementioned factors, to support a dismissal in the interests of justice.
In the case of People v. Rahmen which was decided in 2003, the Appellate Division reversed a grant of a motion to dismiss in the interests of justice, of a charge of sexual abuse in the third degree, of which the defendant had been convicted following a jury trial. In that case, the Appellate Division held that the power to dismiss an indictment in furtherance of justice is to be exercised sparingly. The Supreme Court improvidently exercised its discretion in substituting its own judgment concerning the credibility of the complainant and the culpability of the defendant for that of the jury.
In the case of People v. R.G. Anonymous which was decided in 1998, the court denied a defendant’s motion to dismiss, among other things, charges of sexual abuse in the third degree, in the interests of justice. There, the defendant argued that the circumstances can easily be viewed as miscommunication and not criminal misconduct. However, in many cases of sexual abuse, conduct can be viewed in drastically different ways, depending on whether the view is that of the defendant or that of the complainant. In that case, the court held that it is not for the court, on a motion to dismiss in the interests of justice, to make a determination which view is correct; that is something for the trier of fact after hearing all of the evidence presented. The defendant’s argument that while both complainants were upset, it cannot be reasonably suggested that either suffered any physical or psychological harm, was bereft of merit. The court is aware of the devastating psychological effects that can be felt by a victim of sexual abuse, such as the feeling that they are somehow to be blamed for what happened to them; a sense of helplessness and loss of control.
Here, it must be noted that the Nassau County police elected to make an arrest on defendant and the District Attorney has elected to prosecute. Consequently, the court is, as a matter of law, not permitted to override these exercises of police and prosecutorial discretion. Therefore, the defendant’s motion was denied.
If you find yourself in a situation similar with the above, you must know that you have rights. The Constitution says so and the Nassau County Criminal Defense Lawyers at Stephen Bilkis & Associates say so. Contact us now for a free consultation and learn what these rights are. Protect yourself and help administer justice. Our Nassau County Sex Crime Lawyers, among others, are highly skilled, exceptionally competent, widely experienced, and extremely determined to fight for your cause. Your rights are just like any other person’s rights that need protection from the best legal professionals. Call us now or visit us at any of our offices and discuss your situation. With us, you are in good hands.