        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1044.2
KA 12-00690
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                                MEMORANDUM AND ORDER

ANDREW R. WHITE, DEFENDANT-RESPONDENT.


SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD
OF COUNSEL), FOR APPELLANT.

JAMES NOBLES, ROCHESTER, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Thomas
E. Moran, J.), dated March 19, 2012. The order, on the motion of
defendant, dismissed count three of the indictment and reduced counts
one and five of the indictment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of defendant’s
motion seeking to dismiss the first count of the indictment and
reinstating that count, and as modified the order is affirmed and the
matter is remitted to Supreme Court, Monroe County, for further
proceedings on the indictment.

     Memorandum: The People appeal from an order that granted in part
defendant’s motion to dismiss the indictment based on the alleged
legal insufficiency of the evidence before the grand jury by, inter
alia, reducing the first and fifth counts of the indictment. We agree
with the People that Supreme Court erred in reducing the first count
from sexual abuse in the first degree (Penal Law § 130.65 [1]) to
sexual abuse in the third degree (§ 130.55), and we therefore modify
the order accordingly. The grand jury “must have before it evidence
legally sufficient to establish a prima facie case, including all the
elements of the crime, and reasonable cause to believe that the
accused committed the offense to be charged” (People v Jensen, 86 NY2d
248, 251-252). Legally sufficient evidence is “defined as ‘competent
evidence which, if accepted as true, would establish every element of
an offense charged and the defendant’s commission thereof’ ” (People v
Swamp, 84 NY2d 725, 730, quoting CPL 70.10 [1]). The court “must
consider whether the evidence, viewed most favorably to the People, if
unexplained and uncontradicted[,] . . . would warrant conviction”
(id.; see Jensen, 86 NY2d at 251).

     Contrary to the court’s determination, the evidence before the
grand jury, viewed most favorably to the People, establishes that
                                 -2-                          1044.2
                                                         KA 12-00690

defendant subjected the victim identified in the first count of the
indictment to sexual contact by forcible compulsion. “ ‘Forcible
compulsion’ means to compel by . . . use of physical force” (Penal Law
§ 130.00 [8] [a]). The victim testified that she was unable to get
away from defendant because he was straddling her mid-section while
she was lying on the floor. We conclude that her testimony is legally
sufficient to establish that defendant used force to subject the
victim to sexual contact (see People v Ferrer, 209 AD2d 714, 715; see
also People v Val, 38 AD3d 928, 929, lv denied 9 NY3d 852).

     We agree with the court, however, that the evidence before the
grand jury is not legally sufficient to establish a prima facie case
with respect to the fifth count of the indictment, strangulation in
the second degree (Penal Law § 121.12), and the court therefore
properly reduced that count to criminal obstruction of breathing or
blood circulation (§ 121.11). A person commits criminal obstruction
of breathing or blood circulation when he or she, “with intent to
impede the normal breathing or circulation of the blood of another
person[,] . . . applies pressure on the throat or neck of such person;
or . . . blocks the nose or mouth of such person” (§ 121.11). A
person commits strangulation in the second degree when he or she
commits the crime of criminal obstruction of breathing or blood
circulation as defined in section 121.11, “and thereby causes stupor,
loss of consciousness for any period of time, or any other physical
injury or impairment” (§ 121.12). Initially, as the court properly
held, there was no evidence that defendant caused stupor or loss of
consciousness, and thus to support the count of strangulation in the
second degree the evidence must establish a “physical injury or
impairment” (§ 121.12). The victim who was the subject of the fifth
count of the indictment testified that defendant squeezed his throat
for about three seconds, and that it was painful. He further
testified that, during the remainder of that night as well as during
the next day, his throat was “tingly,” but there was no testimony that
he needed medical assistance. Upon considering the various factors
set forth in People v Chiddick (8 NY3d 445, 447-448) concerning the
evidence required to establish that the victim experienced substantial
pain and thus sustained a physical injury, we conclude that the
evidence, viewed in the light most favorable to the People, did not
establish that the victim sustained a physical injury within the
meaning of section 10.00 (9) (cf. People v Cannon, 300 AD2d 407, 407,
lv denied 99 NY2d 613).




Entered:   November 9, 2012                    Frances E. Cafarell
                                               Clerk of the Court
