This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 157
The People &c.,
            Appellant,
        v.
Frankie Hatton,
            Respondent.




          Leonard Joblove, for appellant.
          Arthur H. Hopkirk, for respondent.




RIVERA, J.:

     The People appeal from an order of the Appellate Term
reversing defendant Frankie Hatton's conviction of one count of
forcible touching, and dismissing the accusatory instrument as


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jurisdictionally defective.    We conclude the instrument sets
forth sufficient factual allegations to establish the elements of
the offense, and therefore reverse the order of the Appellate
Term and reinstate defendant's conviction.
     Defendant was originally arraigned on three accusatory
instruments, each charging him with two counts of forcible
touching (Penal Law § 130.52), sexual abuse in the third degree
(Penal Law § 130.55) and harassment in the second degree (Penal
Law § 240.26 [1]).    The separate instruments contained almost
identical factual allegations that defendant smacked the buttocks
of two different women, for a total of six complainants, over the
course of three weeks.    The instruments differed only in the
date, time and location of the incidents and the respective
complainant's name.    The People subsequently filed supporting
depositions, and, upon motion, Criminal Court consolidated the
three accusatory instruments.
     Defendant thereafter pled guilty to one count of forcible
touching, based upon an incident described by the accusatory
instrument's factual allegations as follows,
          "The deponent [police detective] is informed
          by [the complainant] that, [on June 30, 2009
          at about 10:40 pm at the corner of Albany
          Avenue and Montgomery Street, County of
          Kings, State of New York], a male approached
          the [complainant] and smacked [her] about the
          buttocks.
          The deponent is further informed by the
          [complainant] that the above described
          actions caused [the complainant] to become
          alarmed and annoyed.

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          The deponent is further informed by [an]
          eyewitness . . . that at the . . . above time
          and place, the [eyewitness] observed the
          defendant approach the [complainant] and the
          defendant smacked the buttocks of [the
          complainant].
          The deponent is further informed by
          defendant's own statement that the defendant
          smacked the buttocks of [the complainant]."
Criminal Court sentenced defendant to a one-year jail sentence,
which he has since then completed.
     On appeal, the Appellate Term reversed the conviction     and
dismissed the accusatory instrument based on factual
insufficiency grounds (42 Misc 3d 141[A] [App Term, 2d, 11th, &
13th Jud Dists 2014]).   A Judge of this Court granted leave to
appeal (23 NY3d 1063 [2014]).
     As an initial matter, we consider the People's contention
that defendant impliedly waived his right to be prosecuted by
information.   Whether a defendant has waived a procedural right
is a factual question which this Court may review only to
determine if the record provides any support for the
determination of a lower court (People v Brown, 90 NY2d 872, 874
[1997]; People v Ferguson, 67 NY2d 383, 389 [1986]).
     The parties agree that on the day of his arraignment,
defendant's counsel appeared on behalf of someone else, on a
matter unrelated to defendant's case.   Outside of defendant's
presence, she then responded "Yes" in open court to the court
officer's question, "Counsel, do you waive the reading of the


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rights and charges, but not the rights thereunder for this case
and all other cases before the court?"    Several months later,
defendant pled guilty, in satisfaction of the consolidated
instruments.   The People contend that the combination of this
one-word statement by counsel and defendant's entry of a guilty
plea effectuated an implied waiver of defendant's right to
prosecution by information.
     In People v Connor (63 NY2d 11 [1984]) this Court stated
that a waiver of the mandated reading of the right does not "by
itself constitute a waiver of the procedural right to be tried on
information" (id. at 14 n*; People v Fernandez, 20 NY3d 44, 55 n1
[2010]).   However, "waiver and consent may be implied if the
circumstances . . . compel the conclusion that the defendant,
competently represented by counsel, acquiesced in the prosecution
of the charge against him on the misdemeanor complaint" (Connor,
63 NY2d at 14).    In People v Weinberg (34 NY2d 429, 431 [1974]),
the Court made clear that waiver of this right must be knowing
and intelligent.
     Here, defendant's counsel stated in open court that she
waived only the reading of the rights, but not "the rights
thereunder."   Therefore, under Connor, her statement cannot serve
as a waiver of defendant's procedural right to be tried on
information (Connor, 63 NY2d at 14 n*).    More to the point,
counsel's statement specifically preserved his right to
prosecution by information.   Regardless, unlike the defendant in


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Connor, nothing in the record indicates that in the wake of
counsel's statement defendant acted affirmatively to waive his
right, or that he "acquiesced in the prosecution of the charge
against him on [a] misdemeanor complaint" (id. [determining that
defendant had acquiesced where defense counsel waived the reading
of the right and defendant then made pretrial motions and
proceeded to trial]).
     Additionally, several days after arraignment the People
filed two superseding instruments, six supporting depositions
(one from each of the complainants) and a deposition by an
eyewitness to the incident defendant eventually pled guilty to.
Criminal Court recorded these filings as supporting depositions
and superseding informations. By all appearances, defendant was,
in fact, prosecuted by information.    Under these circumstances,
record support exists for the Appellate Term's conclusion that
defendant did not impliedly waive his right to prosecution by
information.
     As a consequence, we assess the sufficiency of the
accusatory instrument based on the standard applicable to an
information.   Under that standard, the factual part of the
instrument must establish reasonable cause to believe that the
defendant committed the offense charged in the accusatory part of
the information (CPL 100.40 [1] [b]), and must contain
"'nonhearsay allegations which, if true, establish every element
of the offense charged and the [defendant's] commission thereof'"


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(People v Dumay, 23 NY3d 518, 522 [2014], citing People v Kalin,
12 NY3d 225 [2009]; CPL 100.40 [1] [c]).   Where the information
fails to meet this requirement it is jurisdictionally defective
(Kalin, 12 NY3d at 228-229).   As this Court stated in People v
Casey (95 NY2d 354, 360 [2000] [internal citations omitted]),
"[s]o long as the factual allegations of an information give an
accused notice sufficient to prepare a defense and are adequately
detailed to prevent a defendant from being tried twice for the
same offense, they should be given a fair and not overly
restrictive or technical reading."
     The People claim that the accusatory instrument is facially
sufficient because the factual allegations and the reasonable
inferences to be drawn from them establish all the elements of
the offense of forcible touching.    Under Penal Law § 130.52, "[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" (Penal Law § 130.52
[1]).   Furthermore, Penal Law § 130.05 requires that the act be
committed without the victim's consent, meaning that "the victim
does not expressly or impliedly acquiesce in the actor's conduct"
(Penal Law § 130.05 [2] [c]; see also Penal Law § 130.05 [1]).
     Here, the factual allegations easily satisfy the facial
sufficiency standard for the actus reus elements of the offense.


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As this Court held in People v Guaman (22 NY3d 678, 684 [2014]),
"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."   Thus, the
information's assertion that defendant "smacked the buttocks" of
the complainant, more than adequately alleges that defendant
applied the statutorily required pressure to effectuate contact
with a part of complainant's body commonly accepted within
society as sexual or intimate in nature (see id. at 684; People v
Darryl M., 123 Misc 2d 723, 735 [Crim Ct, New York County 1984]
["the buttocks is an intimate part of the body within the meaning
of Penal Law Sec. 130.00(3)"]).
     The factual allegations also sufficiently establish the
complainant's lack of consent within the meaning of Penal Law §
130.05 (2) (c).   The instrument asserts that defendant approached
the complainant and smacked her buttocks on a public street
intersection, late at night, which caused her "to become alarmed
and annoyed."   The reasonable inferences to be drawn from these
allegations are that defendant initiated the conduct and took the
complainant by surprise.   Also, the allegation that defendant's
actions "alarmed and annoyed" the complainant further supports
the inference that she did not acquiesce to defendant's actions.
Thus, the instrument sufficiently alleges the lack of consent
element.


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     Whether the instrument contains sufficient factual
allegations of the purpose elements is a more difficult question.
As a general matter, "intent is rarely proved by an explicit
expression of culpability by the perpetrator" (People v Bueno, 18
NY3d 160, 169 [2011]).   In recognition of the inherent challenges
to demonstrating an actor's mental state, this Court has accepted
that "[i]ntent may be inferred from conduct as well as the
surrounding circumstances" (People v Steinberg, 79 NY2d 673, 682
[1992]).   Accordingly, in the context of assessing the
sufficiency of an accusatory instrument, we have made clear that
"intent may be inferred 'from the act itself (People v Bracey, 41
NY2d 296, 301 [1977])'" (Dumay, 23 NY3d at 525).
     Giving "a fair and not overly restrictive or technical
reading" to the instrument (Casey, 95 NY2d at 360), and
considering the acts and circumstances described therein (Dumay,
23 NY3d at 525), we conclude that the information provides
sufficient factual allegations leading to an inference that
defendant forcibly touched the complainant "for no legitimate
purpose" and "for the purpose of degrading" the complainant
(Penal Law § 130.52).1   Such inference about defendant's criminal


     1
       Given that section 130.52 sets forth the purpose elements
in the disjunctive, we need not determine whether the instrument
is factually sufficient to establish an inference that the act
was done "for the purpose of gratifying [defendant's] sexual
desire" because we conclude that the instrument contains
sufficient factual allegations to establish the alternative
purpose that defendant's actions were done in order to "degrad[e]
or abus[e]" the complainant.

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purpose is appropriate based on the complainant's lack of consent
and the intimate nature of the act, which is commonly considered
to cross the line of propriety, absent a prior relationship or
experience suggesting the complainant and defendant had a mutual
understanding that such conduct was acceptable.    Furthermore, by
ignoring her right to be free from unwanted intimate contact,
defendant disregarded the complainant's autonomy and personhood.
Defendant thus behaved in direct contravention of the
complainant's right to privacy and security in her person.     That
he did so on a public street, in the presence of an eyewitness,
suggests that he was unconcerned by the public display of his
actions, and the humiliation evoked by such conduct.    Therefore,
the information sufficiently establishes the purpose elements of
the crime of forcible touching.
     Defendant's argument that a person may smack another on the
buttocks for a legitimate purpose, such as in self-defense or in
defense of another, does not persuade us that the information
here is jurisdictionally deficient.     The facts as alleged in no
way imply that defendant was acting defensively in response to
actions by the complainant.    To the contrary, as we have
explained, the information alleges that the defendant approached
the complainant and it was he who alarmed her by slapping an
intimate part of her body.    We thus agree with the People that
the factual allegations here are inconsistent with circumstances
in which smacking another person would not constitute forcible


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touching.2
     We caution that our decision in this case should not be
broadly interpreted as a per se rule that the mere assertion that
a defendant smacked the buttocks of another sufficiently alleges
the purpose elements of the statute.   The facial sufficiency of
an accusatory instrument must be assessed on a case-by-case
basis, upon review of the factual assertions contained therein
(see CPL 100.40 [1] [b],[c]; 100.15 [3]).   As we have said,
intent is difficult to discern.   Factors such as defendant's
expressive conduct, the surrounding circumstances, the location


     2
       The dissent urges the speculative inference that at the
time of the incident the complainant was a minor, and that
defendant acted for the legitimate purpose of disciplining her in
his role as the complainant's parent, guardian or custodian
(dissenting op, at 2). However, in assessing the sufficiency of
an instrument the role of the court is not to base its decision
on unfounded speculations, but to consider only those proper
inferences to be drawn from the factual allegations contained in
the information. Here, where the allegations state that
defendant approached the complainant late at night on a public
street and smacked her buttocks, causing her to be alarmed and
annoyed, it is implausible to infer that defendant was acting as
a disciplinarian and in response to an unruly minor. Not even
the defendant goes so far as to suggest this inference. To the
contrary, defendant describes the information as charging him
with touching a woman.
     Furthermore, although our dissenting colleague acknowledges
"that an information need not negate all possible defenses"
(dissenting op, at 1, citing Casey, 95 NY2d at 360), the approach
advocated by the dissent would require nothing less than
assertions responsive to every interpretation of facts favorable
to the defendant. As this Court's prior decisions make
abundantly clear, the law does not impose such an onerous burden
on the People and we see no reason to change course based on the
instant appeal (Casey, 95 NY2d at 360; Guaman, 22 NY3d at 681-
682).

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of the incident and the existence of a prior relationship or a
common understanding between the parties, may support or negate
an inference that defendant harbored the statutory purpose.
     For the reasons we have stated, here the factual portions of
the information "provide reasonable cause to believe that the
defendant committed the offense charged" (CPL 100.40 [1] [b]),
and those factual allegations are of the kind that "give an
accused notice sufficient to prepare a defense and are adequately
detailed to prevent a defendant from being tried twice for the
same offense" (Casey, 95 NY2d at 360 [internal citations
omitted]).
     Accordingly, the order of the Appellate Term should be
reversed, and the judgment of Criminal Court of the City of New
York reinstated.




                             - 11 -
People v Frankie Hatton
No. 157




STEIN, J.(dissenting):
          To be legally sufficient, the factual part of the
information must establish reasonable cause to believe that
defendant committed the charged offense (see CPL 100.40 [1] [b]),
and contain "nonhearsay allegations which, if true, establish
every element of the offense charged and the defendant's
commission thereof" (People v Kalin, 12 NY3d 225, 228-229 [2009]
[emphasis added] [internal quotation marks and citation omitted];
see People v Dumay, 23 NY3d 518, 522 [2014]; People v Alejandro,
70 NY2d 133, 135-136 [1987]).   As relevant here, the information
factually alleged that, at about 10:40 p.m. at the corner of
specified streets, defendant "approached the [complainant] and
smacked the [complainant] about the buttocks," which she
described as causing her "to become alarmed and annoyed."
Because I cannot agree with the majority's conclusion that the
information contains sufficient allegations concerning the
element of the offense of forcible touching that defendant
committed the act "for no legitimate purpose" (Penal Law § 130.52
[1]), I dissent.
          While I recognize that an information need not negate
all possible defenses (see People v Casey, 95 NY2d 354, 360


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[2000]), the lack of a legitimate purpose does not merely pertain
to a defense; it is a distinct element of the crime of forcible
touching that must be affirmatively established by the People.
As with other elements relating to an offender's state of mind,
that purpose element could be established through reasonable
inferences drawn from defendant's actions and the surrounding
circumstances (see People v Steinberg, 79 NY2d 673, 682 [1992]).
However, in my view, even under a "fair and not overly
restrictive or technical reading" (Casey, 95 NY2d at 360), the
factual allegations here are simply too sparse to create or
support any inferences establishing the "no legitimate purpose"
element of the charged crime.   The information is completely
bereft of any facts or details about the ages of the involved
parties or their relationship (or lack of relationship) to each
other -- a factor that even the majority recognizes as relevant
(Maj Opn at 9).   Thus, it is reasonably possible that defendant
could be the parent, guardian or custodian of the complainant --
who may be a minor -- smacking her buttocks as a method of
discipline, which could have annoyed and alarmed her despite
defendant's arguably legitimate purpose.   Although some
speculation may be required to conclude that defendant was so
related to the complainant and had such a legitimate purpose, the
point is that speculation is also required to reach the opposite
conclusion, as the majority has apparently done -- speculation
that could have been avoided simply by including sufficient


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factual allegations in the information to support the charge.1
For example, an allegation that defendant and the complainant
were strangers to one another might have adequately added the
necessary context.
          Nor does the fact that the information charges
defendant with another similar count against a different victim
on a separate occasion support the element of lack of a
legitimate purpose.   Without any details about what occurred
prior to the other incident, the relationship of defendant to
that complainant, or their respective ages, we would have to
engage in the same speculation as to whether defendant lacked a
legitimate purpose with regard to his acts toward the other
complainant, as well.   Repetitions of the same or similar
insufficient allegations do not render them sufficient.
Likewise, we may not consider the other informations -- alleging
additional, similar incidents against different complainants --
when determining the facial sufficiency of the information at
issue.2



     1
       Contrary to the majority's assertion, it is not this
writer's intent to urge any particular inference, but merely to
highlight the inadequacy of the information's factual
allegations.
     2
       Similarly, despite the majority's reference to facts known
by defendant about the complainant (see Maj Opn at 10 n 2), in
ascertaining the sufficiency of the accusatory instrument, it is
not appropriate for the Court to consider facts within
defendant's personal knowledge, which are not set forth in the
instrument itself.

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              Inasmuch as the allegations in the one pertinent
information fail to establish "every element of the offense
charged and the defendant's commission thereof" (CPL 100.40 [1]
[c]), the information did not adequately charge defendant with
forcible touching, rendering it jurisdictionally defective (see
People v Jackson, 18 NY3d 738, 741 [2012]).          Because the
Appellate Term reached this same conclusion, I find no error in
its decision to reverse defendant's conviction and dismiss the
accusatory instrument and would, therefore, affirm.
*   *     *     *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order   reversed and judgment of Criminal Court of the City of New
York,   Kings County, reinstated. Opinion by Judge Rivera. Chief
Judge   Lippman and Judges Pigott, Abdus-Salaam and Fahey concur.
Judge   Stein dissents and votes to affirm in an opinion.

Decided November 23, 2015




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