| People v Hoffert |
| 2015 NY Slip Op 01082 [125 AD3d 1386] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Appellant, v Brandon E. Hoffert, Respondent. |
Leanne K. Moser, District Attorney, Lowville (Caleb J. Petzoldt of counsel), forappellant.
Donald R. Gerace, Utica, for defendant-respondent.
Appeal from an order of the Lewis County Court (Daniel R. King, J.), datedFebruary 14, 2014. The order, insofar as appealed from, dismissed the second count ofthe indictment.
It is hereby ordered that the order insofar as appealed from is unanimously reversedon the law, that part of defendant's omnibus motion seeking to dismiss the count ofsexual abuse in the first degree is denied, that count of the indictment is reinstated andthe matter is remitted to Lewis County Court for further proceedings on theindictment.
Memorandum: The People appeal from an order granting that part of defendant'somnibus motion seeking to dismiss the second count of the indictment, which chargeddefendant with sexual abuse in the first degree (Penal Law § 130.65 [1]).Other counts of the indictment charged defendant with, inter alia, burglary in the seconddegree (§ 140.25 [2]), forcible touching (§ 130.52), andcriminal obstruction of breathing (§ 121.11), all arising from the sameincident. Insofar as relevant here, the evidence before the grand jury included the victim'stestimony that she had previously been in a relationship with defendant and that, on theday in question, defendant sent her text messages demanding to know whether she hadanother man at her house, entered her house without her permission while she slept,choked and beat her, demanded to know whether she had recently had sex, and forciblyplaced his fingers in her vagina after saying " 'I'm going to see if you hadsex.' " We agree with the People that County Court erred in granting that part ofdefendant's motion to dismiss the count charging sexual abuse in the first degree on theground that the evidence before the grand jury was not legally sufficient to establish aprima facie case of that crime, and we therefore reinstate that count.
" 'Legally sufficient evidence' means competent evidence which, if acceptedas true, would establish every element of an offense charged and the defendant'scommission thereof" (CPL 70.10 [1]). Thus, "[o]n a motion to dismiss an indictmentbased on legally insufficient evidence, the issue is whether the evidence before the[g]rand [j]ury establishes a prima facie case" (People v Olivo, 262 AD2d 953,954 [1999]). In deciding a motion to dismiss a count of an indictment for legallyinsufficient evidence, a "reviewing court's inquiry is limited to 'whether the facts, ifproven, and the inferences that logically flow from those facts supply proof of everyelement of the charged crime[ ],' and whether 'the [g]rand [j]ury could rationally havedrawn the guilty inference' . . . That other, innocent inferences couldpossibly be drawn from those facts is irrelevant to the sufficiency inquiry 'as long as the[g]rand [j]ury could rationally have drawn the guilty inference' " (People vBello, 92 NY2d 523, 526 [1998]).
As relevant here, "[a] person is guilty of sexual abuse in the first degree when he orshe subjects another person to sexual contact . . . [b]y forcible compulsion"(Penal Law § 130.65 [1]), and sexual contact is defined as "any touching ofthe sexual or other intimate parts of a person for the purpose of gratifying sexual desireof either party" (§ 130.00 [3]). Consequently, the People were required tosubmit sufficient evidence from which the grand jury could have [*2]inferred that defendant touched the victim's vagina for thepurpose of gratifying his or the victim's sexual desire. It is well settled that, "[b]ecausethe question of whether a person was seeking sexual gratification is generally asubjective inquiry, it can be inferred from the conduct of the perpetrator" (People vBeecher, 225 AD2d 943, 944 [1996]; see People v Willis, 79 AD3d 1739, 1740 [2010], lvdenied 16 NY3d 864 [2011]). Here, we conclude that the evidence before the grandjury, viewed in the light most favorable to the People, was sufficient to permit the grandjury to infer that defendant touched the sexual and intimate parts of the victim's body byforcible compulsion for the purpose of gratifying his sexual desire (see generally People v Scerbo,74 AD3d 1730, 1732 [2010], lv denied 15 NY3d 757 [2010]; People v Fuller, 50 AD3d1171, 1174-1175 [2008], lv denied 11 NY3d 788 [2008]; People vWatson, 281 AD2d 691, 697 [2001], lv denied 96 NY2d 925 [2001]). Torequire, as defendant suggests, that the reviewing court accept the explanation thatdefendant proffered for his conduct, "would skew a reviewing court's inquiry and restrict,if not extinguish, the [g]rand [j]ury's unassailable authority to consider logical inferencesthat flow from the facts presented to it" (Bello, 92 NY2d at 527).
The People's further contention is academic in light of our determination.Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen, JJ.