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Court Concluded that the Crime of Forcible Touching does not Requirement Forcible Compulsion. People v. Powell, 19 Misc 3d 364 (N.Y. Crim. Ct. 2008)


In the world of criminal law, precision and clarity are paramount, for they often serve as the linchpin upon which cases are built. Our journey today takes us into the heart of a gripping legal case: People v. Powell, a 2008 ruling by the New York Criminal Court that centers on the interpretation and application of a relatively new statute – “forcible touching.” This case is not just a mere courtroom drama; it carries significant implications, shedding light on how the legal system navigates the intricacies of defining criminal acts and intent.

Factual Background
In the summer of 2007, Daniel Powell, was charged with forcible touching and sexual abuse in the third degree. According to the victim, SM, Powell lay down next to her, placed his head on her buttocks, and proceeded to touch her vagina over her clothing. SM asserted that she did not provide her consent for these actions.

The absence of consent was a central element of SM’s account. She maintained that Powell’s actions were non-consensual and constituted a violation of her personal boundaries. This alleged intrusion left her emotionally distressed and led to the Powell being charged with the sex crime of forcible touching under Penal Law § 130.52. Powell challenged the charges, arguing that they were facially insufficient and should be dismissed.

The Criminal Court of the City of New York, Kings County denied the defendant’s motion to dismiss the charge of forcible touching, finding it facially sufficient based on the allegations presented.

The crux of the defendant’s argument rested on the assertion that the accusatory instrument was facially insufficient, primarily due to the absence of facts suggesting a lack of consent through forcible compulsion. In essence, the defense contended that the force element required for the offense of forcible touching was not adequately demonstrated in the allegations.

Conversely, the prosecution argued that for an accusatory instrument to be facially sufficient, it need only provide reasonable cause to believe the defendant committed the offenses charged, not proof beyond a reasonable doubt. The prosecution also maintained that the accusatory instrument sufficiently alleged the offense of “forcible touching” and that “forcible compulsion” was not a prerequisite for this particular charge.

The court’s ruling hinged on the interpretation of “forcible touching” and the level of force it encompassed. While the defense cited previous cases to argue that the element of “force” was not sufficiently stated, the court found agreement with the prosecution’s contention. It distinguished between “forcible touching” and “forcible compulsion,” concluding that the nature of force required for these two elements was distinct.

Additionally, the court delved into the broader definition of “forcibly,” understanding it to encompass a wider spectrum of actions, including those that may not entail extreme physical force. It emphasized that the legislature aimed to protect individuals from unwanted sexual contact, regardless of the degree of force applied.

People v. Powell serves as a reminder of the complexities of criminal law and criminal procedure in New York, even if the offense is considered a relative “minor” one. If you have been charged with a sex crime, take it seriously and immediately contact an experienced New York sex crime lawyer.  Keep in mind that a conviction of a sex crime can mean many things including prison, a steep fine, and a permanent criminal record. It may even mean that you will be required to register as a sex offender for many years or for the rest of your life. If you’re facing a charge for forcible touching, contact Stephen Bilkis & Associates to discuss your case.

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