| People v White |
| 2012 NY Slip Op 07460 [100 AD3d 1397] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Andrew R.White, Respondent. |
—[*1] James Nobles, Rochester, for defendant-respondent.
Appeal from an order of the Supreme Court, Monroe County (Thomas E. Moran, J.), datedMarch 19, 2012. The order, on the motion of defendant, dismissed count three of the indictmentand reduced counts one and five of the indictment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying that part of defendant's motion seeking to dismiss the first count of the indictment andreinstating that count, and as modified the order is affirmed and the matter is remitted toSupreme Court, Monroe County, for further proceedings on the indictment.
Memorandum: The People appeal from an order that granted in part defendant's motion todismiss the indictment based on the alleged legal insufficiency of the evidence before the grandjury by, inter alia, reducing the first and fifth counts of the indictment. We agree with the Peoplethat Supreme Court erred in reducing the first count from sexual abuse in the first degree (PenalLaw § 130.65 [1]) to sexual abuse in the third degree (§ 130.55), and we thereforemodify the order accordingly. The grand jury "must have before it evidence legally sufficient toestablish a prima facie case, including all the elements of the crime, and reasonable cause tobelieve that the accused committed the offense to be charged" (People v Jensen, 86 NY2d248, 251-252 [1995]). Legally sufficient evidence is "defined as 'competent evidence which, ifaccepted as true, would establish every element of an offense charged and the defendant'scommission thereof' " (People v Swamp, 84 NY2d 725, 730 [1995], quoting CPL 70.10[1]). The court "must consider whether the evidence, viewed most favorably to the People, ifunexplained 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 mostfavorably to the People, establishes that defendant subjected the victim identified in the firstcount of the indictment to sexual contact by forcible compulsion. " 'Forcible compulsion' meansto compel by . . . use of physical force" (Penal Law § 130.00 [8] [a]). Thevictim testified that she was unable to get away from defendant because he was straddling hermid-section while she was lying on the floor. We conclude that her testimony is legally sufficientto establish that defendant used force to subject the victim to sexual contact (see People vFerrer, 209 AD2d 714, 715 [1994]; see also People v Val, 38 AD3d 928, 929 [2007], lv denied9 NY3d 852 [2007]).[*2]
We agree with the court, however, that the evidencebefore the grand jury is not legally sufficient to establish a prima facie case with respect to thefifth count of the indictment, strangulation in the second degree (Penal Law § 121.12), andthe court therefore properly reduced that count to criminal obstruction of breathing or bloodcirculation (§ 121.11). A person commits criminal obstruction of breathing or bloodcirculation when he or she, "with intent to impede the normal breathing or circulation of theblood 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 personcommits strangulation in the second degree when he or she commits the crime of criminalobstruction of breathing or blood circulation as defined in section 121.11, "and thereby causesstupor, 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 defendantcaused stupor or loss of consciousness, and thus to support the count of strangulation in thesecond 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 defendantsqueezed 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 therewas no testimony that he needed medical assistance. Upon considering the various factors setforth in People v Chiddick (8 NY3d445, 447-448 [2007]) concerning the evidence required to establish that the victimexperienced 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 aphysical injury within the meaning of section 10.00 (9) (cf. People v Cannon, 300 AD2d407, 407 [2002], lv denied 99 NY2d 613 [2003]). Present—Centra, J.P., Fahey,Peradotto, Carni and Sconiers, JJ.