"[W]e hold that, when done with the relevant mens rea, any bodily contact involving the application of some level of pressure to the victim's sexual or intimate parts qualifies as a forcible touch within the meaning of Penal Law § 130.52"
How later courts described this case
- "[W]e hold that, when done with the relevant mens rea, any bodily contact involving the application of some level of pressure to the victim's sexual or intimate parts qualifies as a forcible touch within the meaning of Penal Law § 130.52"
Written by the judges who cited it.
The opinion
Chief Judge Lippman
(concurring). I agree with the result, but not the majority’s proposed rule. The primary question in this case is whether the factual allegations in the misdemeanor information gave defendant adequate notice to prepare a defense and were detailed enough to prevent him from being tried twice for the same offense (see People v Casey, 95 NY2d 354, 360 [2000]). I would hold simply that the information was sufficient under the circumstances.
The majority goes far beyond what is necessary and delineates the entire realm of forcible touching by defining “forcible touch” under Penal Law § 130.52 as “any bodily contact involving the application of some level of pressure to the victim’s sexual or intimate parts” (at 684). To the extent the test is a rejection of defendant’s argument that the touching must consist of compression of a victim’s sexual or intimate parts between two objects, I agree. If the test means that there is some requisite level of pressure, but the Court declines to provide any guidance, I find it unhelpful. If, however, the test intends “some level of pressure” to mean “any pressure,” I disagree.
To define “forcible” as “any pressure” reads “forcible” out of the statute, abolishing an important distinction between forcible touching, an A misdemeanor, and sexual abuse in the third degree, a B misdemeanor, where the touching is performed for sexual gratification. “A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter’s consent” (Penal Law § 130.55). “Sexual contact” is defined as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party” (Penal Law § 130.00 [3] [emphasis added]).
The legislature evidently has made a distinction between “any touching” and “forcible touching” with regard to sex crimes. This distinction would be artificial under the majority’s test because any touching inherently involves the application of *686 “some level of pressure.” The contention that the actus rei of forcible touching and third-degree sexual abuse are distinct because the latter encompasses “fleeting contact” is but a strained attempt to differentiate the critical elements of the two crimes as defined by the majority (at 684). “Fleeting” describes only the transitory nature of the contact, which is irrelevant under the statute.
Judges Graffeo, Smith, Pigott and Rivera concur with Judge Read; Chief Judge Lippman concurs in result in an opinion; Judge Abdus-Salaam taking no part.
Order affirmed.