Pursuant to Civil Rights Law 50-b, the identities of the victims, who are the victims of sex offenses,

, shall be confidential, and this document shall not be made available for public inspection. To be argued by VINCENT RIVELLESE (10 Minutes Requested)

Court of Appeals
STATE OF NEW YORK

THE PEOPLE OF THE STATE OF NEW YORK,

Appellant, - against -

JASON MACK,
Defendant-Respondent.

BRIEF AND APPENDIX FOR APPELLANT

District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov HILARY HASSLER VINCENT RIVELLESE ASSISTANT DISTRICT ATTORNEYS

CYRUS R. VANCE, JR.

Of Counsel

JULY 15, 2011

TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT......................................................................................... 1 QUESTION PRESENTED ................................................................................................ 2 INTRODUCTION................................................................................................................ 3 THE EVIDENCE PRESENTED TO THE GRAND JURY ....................................... 6 THE MOTION PRACTICE ............................................................................................... 8 THE APPELLATE DIVISIONS DECISION .............................................................. 12 POINT THE EVIDENCE BEFORE THE GRAND JURY SUFFICIENTLY ESTABLISHED THAT THE 300-POUND DEFENDANT USED PHYSICAL FORCE WHEN HE POSITIONED HIMSELF BEHIND A MUCH SMALLER TEENAGER ON A CROWDED SUBWAY TRAIN, PINNING HER AGAINST OTHER RIDERS AND THE STRUCTURE OF THE CAR WHILE HE MASTURBATED TO EJACULATION AGAINST HER BACK. ...................................................... 14 CONCLUSION ................................................................................................................... 29

TABLE OF AUTHORITIES STATE CASES Matter of Additional Jan. 1979 Grand Jury v. Doe, 50 N.Y.2d 14 (1980) ............................ 15 People v. Beam, 57 N.Y.2d 241 (1982) ............................................................................. 17-19 People v. Bennett, 219 A.D.2d 570 (1st Dept 1995) ..........................................8-9, 13, 24-25 People v. Bonilla, 290 A.D.2d 454 (2nd Dept 2002) ............................................................ 24 People v. Calbud, Inc., 49 N.Y.2d 389 (1980) ....................................................................... 16 People v. Cobb, 188 A.D.2d 308 (1st Dept 1992) ................................................................ 26 People v. Deegan, 69 N.Y.2d 976 (1987) ............................................................................... 17 People v. Del Campo, 281 A.D.2d 279 (1st Dept 2001) ...................................................... 22 People v. Dordal, 55 N.Y.2d 954 (1982) ............................................................................... 17 People v. Dorsey, 104 Misc. 2d 963 (Sup. Ct., Bronx County 1980), modified on other grounds, 89 A.D.2d 521 (1st Dept 1982)............................................. 22 People v. Dunleavy, 41 A.D.2d 717, affd without opinion, 33 N.Y.2d 573 (1973) .................................................................... 16 People v. Flynn, 123 Misc. 2d 1021 (Sup. Ct., N.Y. County 1984).................................... 18 People v. Fuller, 50 A.D.3d 1171 (3rd Dept 2008) .............................................................. 19 People v. Fuller, 50 N.Y.2d 628 (1980) ................................................................................. 24 People v Jennings, 69 N.Y.2d 103 (1986) ......................................................................... 13, 16 People v. King, 79 A.D.3d 1277 (3rd Dept 2010) ................................................................ 19 People v. Mack, 76 A.D.3d 877 (1st Dept 2010) ................................................................ 4-5 People v Mayo, 36 N.Y.2d 1002 (1975)........................................................................... 13, 16 People v. Peraza, 288 A.D.2d 689 (3rd Dept 2001) ............................................................. 18 People v. Randall, 86 A.D.2d 918 (3rd Dept 1982) ............................................................. 24 ii

People v. Read, 228 A.D.2d 304 (1st Dept 1996) .........................................................8-9, 25 People v. Roman, 179 A.D.2d 352 (1st Dept 1992) ............................................................. 27 People v. Santiago, 62 A.D.2d 572 (2nd Dept 1978), affd, 48 N.Y.2d 1023 (1980) .......................................................................................... 22 People v. Swamp, 84 N.Y.2d 725 (1995) .......................................................................... 15-17 People v. Thompson, 72 N.Y.2d 410 (1988) ............................................................... 14, 23, 27 People v. Warner-Lambert Co., 51 N.Y.2d 295 (1980) .......................................................... 16 People v. Webster, 205 A.D.2d 312 (1st Dept 1994) .................................................. 8, 10, 26 People v. Yeaden, 156 A.D.2d 208 (1st Dept 1989) ................................................... 8, 10, 27

STATE STATUTES Criminal Procedure Law 70.10 ........................................................................................ 16 Criminal Procedure Law 190.65 ...................................................................................... 16 Former Penal Law 130.00 .......................................................................................... 17, 20 Penal Law 130.00............................................................................................................... 17 Penal Law 130.05............................................................................................................... 20 Penal Law 130.55......................................................................................................... 14, 21 Penal Law 130.65..................................................................................................... 1, 14, 17

OTHER AUTHORITIES Blacks Law Dictionary, Fifth Edition (West 1979) ............................................................. 18 http://www.merriam-webster.com/dictionary/force .................................................... 18

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COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -againstJASON MACK, Defendant-Respondent.

BRIEF FOR APPELLANT PRELIMINARY STATEMENT The People of the State of New York appeal from a September 21, 2010 order of the Appellate Division, First Department. That order affirmed a January 29, 2009 order of Supreme Court, New York County (Renee A. White, J.), dismissing the sole count of New York County Indictment Number 5730/2008, which charged defendant with Sexual Abuse in the First Degree (Penal Law 130.65[1]), on the ground that the evidence before the grand jury was not sufficient to support that charge. By an order dated December 7, 2010, the Honorable James M. Catterson granted the People leave to appeal to this Court.

QUESTION PRESENTED The People obtained an indictment for first-degree sexual abuse based on evidence before the grand jury that defendant trapped his much younger, smaller victim by pushing himself behind her in a packed rush hour subway train, thereby immobilizing her and causing her to feel threatened while he masturbated against her back and ejaculated on her clothing. Did this evidence sufficiently support the conclusion that defendant used forcible compulsion, so that the People should have been permitted to proceed to trial on the indictment? A divided court below answered this question in the negative.

INTRODUCTION On March 22, 2002, during the morning rush hour in Manhattan, defendant sexually accosted 14-year-old Melida Galvez aboard the crowded downtown Number 1 train, while Galvez was on her way to school. Defendant, a 29-year-old man standing 5 9 tall and weighing about 300 pounds, pushed himself immediately behind Galvez, who was 5 2 tall and 150 pounds, so that their bodies were touching. Defendant made strange motions against Galvez, causing her to feel

threatened, but Galvez could not move away because the crowd and the subway seats were blocking her. Defendant then discharged his semen on Galvezs jacket and pants. Galvez discovered the semen around the time the subway arrived at the next stop, but defendant got away. Galvez proceeded to school and reported what had happened. In May 2002, authorities developed a DNA profile from the semen stain on Galvezs jacket, but defendants identity as the source remained unknown. In 2007, however, defendants DNA was added to the DNA Databank. In 2008, the Medical Examiners Office compared the DNA profile from Galvezs jacket to the one obtained from defendant in 2007, and the profiles matched. Defendant later

admitted to a police detective that he often rode the subway during rush hour because the crowds on the train provided him with the opportunity to rub against women. By New York County Indictment Number 3161/2008, filed on June 27, 2008, defendant was charged with one count of Sexual Abuse in the First Degree for the 3

offense against Galvez and a lesser count of Sexual Abuse in the Third Degree for a separate offense committed in 2006 against another victim. Defendant asked the court to inspect the grand jury minutes and to dismiss or reduce the first-degree count. In a written decision dated September 22, 2008, Justice Renee A. White found that the grand jury evidence did not support the element of forcible compulsion and reduced the count of Sexual Abuse in the First Degree to the lesser included charge of Sexual Abuse in the Third Degree. The prosecutor presented the case to another grand jury, and by New York County Indictment Number 5730/2008, filed on November 10, 2008, defendant was again charged with one count of Sexual Abuse in the First Degree for the offense against Galvez. Before trial, defendant asked the court to inspect the grand jury minutes and to dismiss or reduce the new first-degree sexual abuse charge. On January 29, 2009, Justice White granted defendants inspection motion and dismissed the second indictment, leaving the People to prosecute the reduced charge of thirddegree sexual abuse under the original indictment. The People appealed to the Appellate Division, First Department. That court affirmed over two Justices dissents. People v. Mack, 76 A.D.3d 877 (1st Dept 2010). The majority held that defendants actions did not amount to physical force, and that there was insufficient evidence to support the victims grand jury testimony that she felt threatened. 76 A.D.3d at 879. The dissenters argued that the majority had

applied too exacting a standard for grand jury sufficiency purposes, and urged that defendants use of crowded subway conditions to trap a child while he ejaculated on her could amount to physical force sufficient to establish the element of forcible compulsion. Id. at 880-882. Accordingly, the dissenters would have reversed and allowed the People the chance to prove the case at trial. The People sought permission to appeal to this Court, and by an order entered December 7, 2010, Justice Catterson granted leave to appeal (A100). This Court has jurisdiction to review the question of law whether the grand jury evidence was legally sufficient, and that question of law was preserved by the Peoples detailed arguments to the motion court that such evidence was sufficient (A68-A71, A77-A78).

THE EVIDENCE PRESENTED TO THE GRAND JURY On the morning of March 22, 2002, 14-year-old MELIDA GALVEZ, who stood about 5 2 tall and weighed about 150 pounds, was on her way to school. Galvez boarded the downtown Number One train at West 72nd Street in Manhattan (A42-A43). The subway car became very crowded, and as Galvez leaned against a door with the seats right next to [her] on the right side, a tall, very heavy African American man quickly pushed himself in so that he was behind her (A43-A44). After the doors closed and the train started to move, Galvez felt some kind of weird movements and [t]ouching on the lower left side of her back. At first, she kind of figured it was just because the train was moving really fast and it was really crowded. Galvez turned around three times in defendants direction; each time she did that, the movements and touching temporarily stopped. Although Galvez did not know exactly what was happening, she felt threatened by it, and she tried to move away but she could not. The really crowded subway car, and the seats against which she was more or less pinned, blocked her freedom of movement. Thus, the unwelcome touching continued until the train got to the next stop (A43-A44). As Galvez prepared to disembark the train at the next station, she pulled down her sleeve and discovered semen on her jeans and her jacket. She went to school and told officials there what had happened. Shortly thereafter, the police responded and took custody of Galvezs pants and jacket (A45).

The police developed a DNA profile from the semen on the jacket, but the case remained unsolved for six years. Then, in 2008, CONNIE LU, a criminalist with the Medical Examiners Office, compared the DNA profile developed from the semen on Galvezs jacket to defendants DNA profile, which had been added to the New York State DNA Data Bank after being obtained from defendant in May 2007 (A52-A59). Lu determined that the profiles matched (A57). Manhattan Special Victims Squad Detective ALAN SANDOMIR, assigned to work on DNA cold cases, interviewed defendant after the DNA hit implicated him in the crime against Galvez. During the interview, Sandomir showed defendant a picture of Galvez. Defendant said that he did not know Galvez and that he had never seen her before. Sandomir asked defendant whether he traveled on the

Number One train, and defendant replied that he did not because he had no reason to do so. Sandomir then advised defendant that this was a DNA based case and that Sandomir had grounds to believe that defendant had in fact traveled on the Number One train. At that, defendant admitted to Sandomir that he took the number 1 train and the A train downtown, usually during rush hour, and [would] rub against women while on the train, while it was crowded (A48-A50). Detective Sandomir also noted during the interview that defendant was about 5 9 tall and weighed between 300 and 320 pounds. On March 22, 2002, defendant was 29 years old (A48).

THE MOTION PRACTICE On August 18, 2008, defendant moved before Justice White for omnibus relief, including inspection of the grand jury minutes for New York County Indictment Number 3161/2008, the original indictment, and dismissal or reduction of the firstdegree sexual abuse charge. Defendant argued that the evidence presented to the grand jury failed to establish that he committed the crime of Sexual Abuse in the First Degree in that there was insufficient evidence of forcible compulsion (A11). In particular, defendant noted that, in his post-arrest statement, he had admitted only to rubbing against women while pressed against them during rush hour. He allowed that such conduct was obnoxious, but he maintained that it did not rise to the level of forcible compulsion (A11). On January 12, 2009, the People consented to the courts in camera inspection of the grand jury minutes and opposed defendants dismissal motion. Relying on People v. Webster, 205 A.D.2d 312 (1st Dept 1994), and People v. Yeaden, 156 A.D.2d 208 (1st Dept 1989), the prosecutor argued that the grand jury evidence showed that defendant trapped his young victim and that such conduct was sufficient to establish forcible compulsion (A23). The prosecutor also noted that in People v. Read, 228 A.D.2d 304 (1st Dept 1996), and People v. Bennett, 219 A.D.2d 570 (1st Dept 1995), the Appellate Division had found that creating a human wall and preventing movement by a victim constituted sufficient force for robbery convictions (A23).

On January 16, 2009, defendant filed reply papers in which he acknowledged that there might be sufficient evidence of sexual contact, but insisted that there [wa]s no evidence that such touching was the result of any forcible compulsion on the defendants part (A32). In a decision and order dated September 22, 2008, Justice White ordered that the count charging Sexual Abuse in the First Degree be reduced to Sexual Abuse in the Third Degree. Initially, the court found that evidence was adduced that

defendant subjected a woman to non-consensual sexual contact on a very crowded train (A35). The judge then ruled: The People contend that the other passengers on the train inadvertently formed a human wall which rendered the victim unable to move away from defendant, and that defendants use of that human wall was legally sufficient to establish the element of forcible compulsion. The People cite to People v. Read, 228 A.D.2d 304 (1st Dept 1996) and People v. Bennett, 219 A.D.2d 570 (1st Dept 1995) as authority for the proposition that a human wall is sufficient to establish the requisite element of forcible compulsion. However, in those two cases robbery convictions were sustained because the human wall consisted of defendants accomplices who positioned themselves so as to block the victim from resisting; and it was that action by the accomplices which constituted the threatened use of force. In contrast, the mere close presence of many other passengers in the train is not sufficient to establish the requisite use of forcible compulsion by the defendant. (A35-A36).

The court further reasoned that the Appellate Division holdings in People v. Webster and People v. Yeaden were inapplicable as they entail[ed] defendants who used their superior age, size and strength to sexually assault their smaller, weaker daughters (A36). The prosecutor re-presented the case to another grand jury, and by New York County Indictment Number 5730/2008, defendant was charged anew with one count of Sexual Abuse in the First Degree. In an omnibus motion filed on December 29, 2008, defendant asked the court to inspect the grand jury minutes and either to dismiss the second indictment or to reduce the first-degree charge contained therein (A65). Defendant stated that the court had already rejected the Peoples argument that the forcible compulsion element was established by evidence that defendant created a human wall (A65). Noting his inability to review the grand jury minutes, defendant further stated that it was difficult to conceive how the testimony could have changed to be sufficient (A65). According to defendant, no other force was alleged by the [People] to support the earlier indictment, and from the [courts prior] decision, none existed in the testimony (A65). In response, the People provided the second set of grand jury minutes to Justice White for inspection and opposed defendants new motion to dismiss. The People pointed out that defendant readily availed himself of the crowded rush hour conditions on the subway, and made Galvez feel threatened. The prosecutor

10

further argued that Galvez tried to get away from defendant but was unable to, and that defendant was considerably older, larger and stronger than Galvez (A69-A71). As a result, [d]efendants actions, in their totality, amount[ed] to forcible compulsion (A69). Defendant replied by papers dated January 16, 2009 in which he reiterated his position that the People still fail[ed] to show any physical act by the defendant that [went] beyond sexual touching (A73-A74). In so doing, he stated that he did nothing more than touch the complainant and no forcible compulsion was involved. He also urged that there was no mention that the complainant verbalized any resistance to the defendant or any of the many other passengers (A74). In addition, defendant argued that the Peoples position confuses the physical act of sexual contact with the requirement of forcible compulsion (A74-A76). He also challenged as having no basis the Peoples argument that the use of pre-existing conditions on the train constituted physical force in light of the absence of proof of a forcible act or threaten[ed] force (A75-A76). The People filed a sur-reply on January 29, 2009 in which they countered that [t]here is no requirement that a victim resist, verbally or otherwise (A77). The prosecutor also disputed defendants allegation that the underlying evidence [supporting the second indictment] was no different than that of the first indictment by noting that in the second grand jury presentation, the underlying evidence elicited

11

vast differences in age, height, and weight between defendant and the victim (A77). And, although touching alone is insufficient to establish forcible compulsion, the People stressed that is not what occurred here (A78). Finally, the prosecutor disagreed with defendants position that pre-existing conditions cannot contribute to whether [a] defendant committed the crime, arguing that defendant in this case employed forcible compulsion [u]nder the circumstances, including press[ing] Galvez against the people and the subway seats (A78). That same day, Justice White issued a written decision and order dismissing Indictment Number 5730/2008. In the decision, the judge repeated the discussion in her first opinion of the forcible compulsion element, and she added: The Court has conducted an in camera inspection of the minutes and finds, as it did with the original Grand Jury presentation, that the evidence showed that defendant sexually touched the complainant but failed to establish the requisite use of forcible compulsion. Therefore, the evidence was legally insufficient to establish the crime of Sexual Abuse in the First Degree. Since the charge of Sexual Abuse in the First Degree contained in Indictment No. 3161/08 was reduced to Sexual Abuse in the Third Degree, there is no reason to again so reduce that charge; and Indictment No. 5730/08 is dismissed. (A81-A82).

THE APPELLATE DIVISIONS DECISION The People appealed, and a divided Appellate Division affirmed. The majority held that the evidence in the grand jury was legally insufficient to establish the use of 12

physical force, and it opined that [i]nstead, it established the use of stealth to commit the crime (A94). The court based that conclusion in large part on the fact that the victim did not know exactly what defendant was doing (id.). The court also held that the victims testimony that she felt threatened did not establish a threat because the grand jury was not presented with detailed facts to support the claim, and there was no evidence from which it could have been inferred that the complainant was placed in fear of immediate death, physical injury or kidnapping (A95). In dissent, Justices Catterson and Andrias noted that for grand jury purposes, legally sufficient means prima facie, not proof beyond a reasonable doubt (citing People v Mayo, 36 N.Y.2d 1002, 1004 [1975], and People v Jennings, 69 N.Y.2d 103, 114 [1986]) (A95). The dissenters believed that defendant deliberately used the crowded conditions to trap his victim with the equivalent of a human wall (A97), and that defendants superior age, size and strength contributed to the proof of physical force (A98). The dissenters agreed with the majority that defendant was furtive insofar as he accomplished his perverted act in a subway car full of people by stealth, but found that this did not undermine the evidence of force, as there is nothing furtive about a 300-pound man rubbing his exposed penis and ejaculating on a trapped child (A99).

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POINT THE EVIDENCE BEFORE THE GRAND JURY SUFFICIENTLY ESTABLISHED THAT THE 300POUND DEFENDANT USED PHYSICAL FORCE WHEN HE POSITIONED HIMSELF BEHIND A MUCH SMALLER TEENAGER ON A CROWDED SUBWAY TRAIN, PINNING HER AGAINST OTHER RIDERS AND THE STRUCTURE OF THE CAR WHILE HE MASTURBATED TO EJACULATION AGAINST HER BACK. As this Court has observed, the sine qua non for criminal liability for sex offenses under our Penal Law is lack of consent, resulting from either forcible compulsion or incapacity to consent. People v. Thompson, 72 N.Y.2d 410, 416 (1988). With respect to Sexual Abuse in particular, the law recognizes three degrees of severity. The third-degree crime prohibits any sexual contact with any non-

consenting victim, see Penal Law 130.55, while the first-degree and second-degree crimes are committed when there are additional aggravating factors. When sexual abuse is committed by the use of forcible compulsion, the crime is aggravated to the first degree. See Penal Law 130.65(1). Here, where the victim was merely 14 years old and legally incapable of consenting to the sexual contact defendant had with her, defendant would have been guilty of third-degree sexual abuse even if the victim had been a willing participant. But she was far from willing. Instead, the victim was pinned between the 300-pound defendant on the one hand, and the crowd and the structure of the moving subway car on the other. Thus, when she tried to get away from defendants touching, she 14

could not, and defendant was able to keep her in place until he ejaculated. Two grand juries returned an indictment on a charge based on forcible compulsion, and two Appellate Division justices found this to be enough to support an indictment for Sexual Abuse in the First Degree based on the theory that defendant used forcible compulsion to commit his crime. Supreme Court and the Appellate Division majority erred in finding the evidence insufficient, as a matter of law, to support the grand jurys finding that defendant used forcible compulsion. Contrary to the majoritys decision, it did not matter that the young victim did not know exactly what defendant was doing while he masturbated against her body. It more than sufficed that defendant deliberately chose a cramped space with the intent of sexually abusing the victim, that he rubbed his penis on the victim to gratify himself, that she felt threatened by it, that she tried to get away, and that her efforts to get away were thwarted by defendants deliberate use of his body and the crowded subway car to immobilize her until he finished. The People therefore should have been permitted to bring this case to trial. A. A grand jury does not adjudicate the guilt or innocence of the accused. Rather, its primary function is to determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution. People v. Swamp, 84 N.Y.2d 725, 730 (1995) (quoting Matter of Additional Jan. 1979 Grand Jury v. Doe, 50

15

N.Y.2d 14, 19 [1980], citing People v. Calbud, Inc., 49 N.Y.2d 389, 394 [1980]). Given that an indictment merely permits the People to seek a conviction and does not itself constitute one, it makes sense that the evidence before the grand jury need not persuade that body beyond a reasonable doubt that the defendant is guilty of the charged crime. Instead, the evidence in the grand jury need only provide reasonable cause to believe that the accused committed the crime, so long as the evidence is legally sufficient. CPL 190.65(1). Legally sufficient evidence, in turn, is

competent evidence which, if accepted as true, would establish every element of an offense charged. CPL 70.10(1); People v. Warner-Lambert Co., 51 N.Y.2d 295, 298299 (1980). In other words, in the context of a grand jury proceeding, legally

sufficient means prima facie, not proof beyond a reasonable doubt. Swamp, 84 N.Y.2d at 730 (citing People v. Mayo, 36 N.Y.2d 1002, 1004 [1975]). A court assessing the sufficiency of grand jury evidence, just as with trial evidence, must view that evidence in the light most favorable to the People. Swamp, 84 N.Y.2d at 730; see also Warner-Lambert Co., 51 N.Y.2d at 299. The reviewing court is thus limited to determining whether those favorable facts, if unexplained and uncontradicted, and the favorable inferences that logically flow from them, support every element of the crime charged. See People v. Jennings, 69 N.Y.2d 103, 114 (1986); Warner-Lambert Co., 51 N.Y.2d at 298-299; People v. Dunleavy, 41 A.D.2d 717 (1st Dept), affd without opinion, 33 N.Y.2d 573 (1973). That other, innocent inferences

16

could possibly be drawn from those facts is irrelevant to the sufficiency inquiry, as long as the grand jury could rationally have drawn the guilty inference. People v. Deegan, 69 N.Y.2d 976, 979 (1987); see also People v. Dordal, 55 N.Y.2d 954, 956 (1982). In other words, questions regarding the weight and quality of the evidence must be deferred. Swamp, 84 N.Y.2d at 730. Turning to the elements of defendants crime, an indictment for first-degree sexual abuse by forcible compulsion must be supported by sufficient evidence that the defendant subjected his victim to sexual contact1 by means of forcible compulsion. Penal Law 130.65(1). Even though the concept of forcible

compulsion may be abstract, the words of the statute itself cannot be termed ambiguous. People v. Beam, 57 N.Y.2d 241, 250 (1982). To use forcible

compulsion means to compel in one of two distinct ways: either by use of physical force, or by a threat, express or implied, which places a person in fear of immediate death or physical injury. Penal Law 130.00(8). The physical force theory of forcible compulsion is not expressly defined in the Penal Law or in this Courts precedent, but it is easy to see that it need not have
In 2002, sexual contact was defined as any touching either directly or through clothing of the sexual or other intimate parts of an actor or a victim who are not married, for purposes of gratifying sexual desire of either party. Former Penal Law 130.00(3) (2002). The definition of sexual contact has since been modified to remove the requirement that the actor and victim not be married, and to include expressly the situation where an actor ejaculates on a victim without touching. Penal Law 130.00(3). The sufficiency of the proof of that element is not at issue on this appeal.
1

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the violent overtones that would necessarily accompany the threat theory, which requires that the victim be placed in fear of injury or death. For one thing, this Court has implied that a defendants conduct will amount to physical force simply if it is enough to force his victim[] to comply with his desires. Beam, 57 N.Y.2d at 250 (There was adequate evidence in both cases that the defendant used physical force and intimidation in order to force his victims to comply with his desires). Common dictionary definitions also support this view. For example, Blacks Law Dictionary defines physical force alternatively as [f]orce applied to the body and actual violence. Blacks Law Dictionary, Fifth Edition (West 1979). Merriam Websters online dictionary offers no definition of physical force, but five definitions of force, the third of which is violence, compulsion, or constraint exerted upon or against a person or thing. webster.com/dictionary/force (accessed July 12, 2011). See http://www.merriamOne court has similarly

defined physical force as power or strength or violence exerted against a body. People v. Flynn, 123 Misc. 2d 1021, 1023 (Sup. Ct., N.Y. County 1984). Consistently with all those common sense definitions of force, lower courts have recognized that force can take many forms, not all of them violent. See, e.g., People v. Peraza, 288 A.D.2d 689, 691 (3rd Dept 2001) (forcible compulsion is not synonymous with violence).

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Moreover, there is no authority for the proposition that a defendants application of physical force must compel the victim affirmatively to cooperate in facilitating the sexual contact, as would be required where a perpetrator threatens a victim to gain compliance. Instead, sexual abuse by forcible compulsion can be established by any unwanted sexual contact achieved by means of the physical force employed. See, e.g., People v. King, 79 A.D.3d 1277, 1278 (3rd Dept 2010) (sexual abuse proved where defendants use of forcible compulsion subjected the victim to sexual contact); People v. Fuller, 50 A.D.3d 1171, 1175 (3rd Dept 2008) (forcible compulsion in sexual abuse case might be shown by proof that unwanted sexual contact was brought about by the actors use of physical force). In short, the physical force theory of forcible compulsion is distinct from the threat theory, and a perpetrators use of physical force need not frighten or threaten a victim into knowing compliance with unwanted sexual contact. Instead, the physical force required to establish forcible compulsion should be understood as any exercise of power, strength, or constraint that succeeds in enabling a defendant to engage in unwanted sexual contact. See Beam, 57 N.Y.2d at 250. B. By these standards, the indictment should not have been dismissed. The evidence presented to the grand jurors supported their conclusion that defendant

19

used forcible compulsion in furtherance of his sexual abuse of 14-year-old Melida Galvez. To begin, there has never been any dispute that defendant engaged in sexual contact with Galvez. Coupled with the DNA proof that defendant was the source of the semen, the victims testimony established that defendant repeatedly made weird movements that made physical contact with the lower left side of her back, through her clothing. Defendant then ejaculated onto Galvezs jacket and jeans, providing the ultimate evidence of defendants sexual gratification and after the DNA hit, the ultimate proof of his identity as the perpetrator. Defendant later admitted to

Detective Sandomir that he deliberately rode rush hour subway trains so that he could rub against female straphangers. All this evidence left no doubt that

defendant had sexual contact with Galvez for his own sexual gratification which, absent Galvezs consent, would constitute sexual abuse in the third degree. See Former Penal Law 130.00(3) (2002) (defining sexual contact); 130.55 (sexual abuse in the third degree). It was just as clear from the grand jury evidence that defendant undertook this sexual contact without Galvezs consent. After all, Galvez was 14 years old and for that reason alone, she was legally incapable of consenting to sexual activity with a 29year-old man. See Penal Law 130.05(3)(a) (person under 17 incapable of consent to sexual act with actor more than 5 years older). Thus, even had Galvez enthusiastically

20

agreed to endure defendants depredations, he would have been guilty of third-degree sexual abuse for having sexual contact with a minor whose age made her incapable of consenting. Penal Law 130.55. Of course, the circumstances here were aggravated beyond that bare minimum, as Galvez did not in any way purport to consent to sexual contact with defendant. To the contrary, she was innocently taking the subway to school when defendant, a complete stranger, masturbated and ejaculated on her back. Indeed, the fact that defendant stopped moving each time Galvez turned around to see what he was doing underscores that even defendant knew he lacked her consent to sexual contact. But beyond simply not consenting to that unsolicited contact, Galvez albeit without realizing precisely what was taking place felt threatened by what defendant was doing to her. Galvez even acted on her lack of consent by trying to get away, but her effort proved to be unsuccessful. There can be little doubt that Galvez felt that she had been forced to endure defendants machinations. Galvez told the grand jurors that she was leaning against the door of the moving subway car, which was really crowded. Defendant had pushed himself behind her, leaving Galvez effectively immobilized in place. Then, when Galvez felt defendant moving against her back, she saw that a tall, very heavy man was the source, and she felt threatened. Yet when she tried to get away from

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defendant, she was blocked by the seats to her right, the crowd of commuters around her, and the physically imposing defendant behind her (A43-A45). She was trapped. Based on this testimony, the grand jurors reasonably inferred that defendant deliberately pinned Galvez in the subway car so that she could not move while he masturbated against her. This act, which had the effect of limiting her freedom of movement[,] was plainly forcible. People v. Del Campo, 281 A.D.2d 279, 280 (1st Dept 2001) (defendant grabbed victims chest from behind, lifted her off her feet, and rubbed his genitals against her buttocks while his hands were on her breasts). The use of surrounding circumstances to effectuate force has been recognized by some courts as sufficient to establish the element of physical force. For example, a

defendants intentional use of the momentum of a subway train in an effort to snatch a purse has been found to constitute the requisite force for robbery. People v. Santiago, 62 A.D.2d 572 (2nd Dept 1978), affd, 48 N.Y.2d 1023 (1980). And a defendants manipulation of an elevator to stop between floors, trapping his victim, has been found to constitute physical force, satisfying the forcible compulsion element of firstdegree rape and sodomy. People v. Dorsey, 104 Misc. 2d 963, 970-971 (Sup. Ct., Bronx County 1980), modified on other grounds, 89 A.D.2d 521 (1st Dept 1982). In other words, Galvez implicitly objected to the unsolicited contact defendant imposed upon her, she felt threatened by it, and she tried to thwart the contact to the extent the circumstances allowed but because defendant had set up the situation so

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that Galvez would be unable to get away, her efforts to resist defendants contact failed, and she was forced to endure it against her will. Where the evidence shows that defendant engineered the circumstances precisely to have that effect, and where defendants 300-pound frame was a large component of the trap from which his victim could not extricate herself despite her earnest attempt to do so, it would defy reason to conclude that defendant did not use physical force to perpetrate this crime. Indeed, on these facts, defendants conduct might well have sufficed to constitute physical force even under the archaic definition that physical force must be capable of overcoming a victims earnest resistance and as this Court is well aware, such a requirement is no longer the law. See Thompson, 72 N.Y.2d at 415. The victims unsuccessful effort to escape defendants conduct quite patently illustrates the fact that defendant physically forced her to endure it. Nor is this result unfair to defendant in any way, as the victims inability to get away was no mere happy accident for defendant. In fact, it was reasonable for the grand jury to infer that even before defendant committed this crime, he fully expected to use physical force to carry it out. As the grand jurors knew, defendant admitted after his arrest that he deliberately chose crowded subway cars as the venue for his acts of sexual abuse. The reason for that choice was obvious: defendant knew that the crowded conditions would enable him to trap his victims, preventing them from moving before he achieved sexual gratification, even while minimizing the visibility of

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his crime to those not experiencing it firsthand. The other passengers were not accomplices to the crime, but with their unwitting help, defendant used their presence in the tightly packed subway car to create a human sardine can from which the victim could not escape. Notably, defendants intentional use of the crowded train to restrain his victim is not appreciably different than other well recognized acts of force. Surely, had defendant instead held Galvez with one arm while he masturbated against her, there would be no question that he used forcible compulsion. See, e.g., People v. Bonilla, 290 A.D.2d 454, 454-455 (2nd Dept 2002) (evidence that defendant restrained victim with one arm while he fondled her was sufficient to establish forcible compulsion); People v. Randall, 86 A.D.2d 918 (3rd Dept 1982) (evidence that defendant grabbed victim by her hair and held her in a firm grip established forcible compulsion); see also People v. Fuller, 50 N.Y.2d 628, 636 (1980) (38-year-old defendants use of force in pressing [10-year-old victims] shoulders down against the bed so that her efforts at wriggling away from him were unsuccessful constituted forcible compulsion). Here,

defendant did not have to hold Galvez because he had her pinned in place on the crowded train, under conditions he deliberately chose to accomplish his criminal end. Although not previously addressed by this Court, the First Department has recognized that the act of blocking a victims means of escape during a robbery amounts to force. In People v. Bennett, 219 A.D.2d at 570, a robbery victim attempted

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to follow the defendants accomplice who had just taken the victims money. The defendant and three other accomplices blocked the victims way. The Appellate Division found that the formation of a human wall designed to prevent the victim from trying to recover his property was sufficient to establish the use of force for purposes of the second-degree robbery statute. Id. Similarly, in People v. Read, 228 A.D.2d at 304-305, the Appellate Division found that there was legally sufficient evidence of a forcible taking to support the defendants conviction for second-degree robbery where the defendant and his accomplices positioned themselves in front and to the side of [their victim], essentially forming a human wall. Id. at 304. When the victim in Read attempted to walk away, one of the accomplices placed his hand on the victims stomach to stop him, after which the defendant removed the victims chain, wallet, and watch. The court held that defendant and his accomplices at the least threatened the use of force by the manner in which they surrounded [the victim] and prevented his movement. Id. at 305. In this case, defendant used his body and the crowded subway car to block his victims movement in much the same manner, preventing his victim from escaping the contact defendant was imposing upon her. Whether a human wall or the immobilizing condition of a Manhattan subway car during rush hour, the practical effect was the same: Galvez was

compelled to endure the crime because defendant had thwarted all avenues of escape.

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Moreover, the crowded subway conditions were not the only indicators of defendants use of force in this case. Defendant also took advantage of his superior size and age to achieve his ends. The evidence showed that defendant was 29 years old at the time he accosted his 14-year-old victim. And, in addition to that substantial 15-year age gap, defendant had a 7-inch height advantage over Galvez, and he weighed some 150 pounds more than she did. Importantly, the record shows that Galvez was aware of these disparities: she turned around three times to look at defendant after the touching began and she was able to describe defendant as a tall, very heavy man (A44). The grand jurors could reasonably infer from this evidence that defendant selected Galvez precisely because she was barely a teenager and much smaller than he. Defendant no doubt would have surmised correctly, as it turned out that his size and age would enable him to achieve his end. And not surprisingly, Galvez testified that she felt threatened by him. Those sorts of physical advantages are reasonably viewed as relevant to a finding of physical force. See People v. Webster, 205 A.D.2d at 312 (relevant to finding of physical force that adult defendant was considerably older, larger and stronger than his twelve-year-old daughter); People v. Cobb, 188 A.D.2d 308, 308 (1st Dept 1992) (evidence that 23-year-old defendant lay on top of 11-year-old victim and used his physical dominance to prevent her from standing up and leaving sufficient for finding of forcible compulsion in first-degree

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sodomy); People v. Roman, 179 A.D.2d 352, 353 (1st Dept 1992) (Forcible compulsion can be established by evidence that the defendant used his superior age, size and strength to prevent the victim from escaping, and to compel her to have sexual intercourse); People v. Yeaden, 156 A.D.2d 208, 208 (1st Dept 1989) (use of superior age, size, and strength to pull nine-year-old victim onto bed and have sexual intercourse sufficient to establish forcible compulsion for first-degree rape); cf.

Thompson, 72 N.Y.2d at 413-414 (this Court noted defendants greater size in discussing sufficiency of evidence that he could carry out threat of injury or death against his smaller victim). Simply put, defendant overpowered Galvez with his greater size by pushing himself in so that he was behind her and cornering her in a manner that cut off all avenues of escape. Plainly, in pinning Galvez between the crowd and the subway seats, defendant exerted force against his victim by preventing her from moving. And it was while defendant effectively blocked Galvezs movement, and intimidated her, that defendant sexually abused her. Without his physical advantage and the steps he took to trap his victim on the crowded subway car, Galvezs attempt to move away would have succeeded, and defendant would not have been able to complete his crime. The Appellate Division majoritys characterization of defendants conduct as stealth, and not force, widely misses the mark. As the dissenters pointed out,

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defendant was certainly trying to avoid detection by the other passengers. But that he used the crowded conditions to mask his conduct, as well as perpetrate it, has little to do with whether it amounted to the use of physical force. It mattered not at all that Galvez did not know exactly what defendant was doing behind her. Had defendant held her in place with his arm while he made the same movements behind her, she might not have been certain what he was doing but that would not mean that defendant did not use forcible compulsion by holding her in place with his arm. Likewise, a baby or an unconscious person certainly would not appreciate the significance of sexual contact, but they can still be the victims of it. In any event, Galvez clearly suspected that defendant was doing something inappropriate. That was why she repeatedly glanced behind her, felt threatened, and tried to get away. * * *

In sum, the grand jury evidence was sufficient to support defendants indictment for Sexual Abuse in the First Degree, and the People should be given a chance to prove defendants guilt of that crime at a trial. Accordingly, this Court should reverse the decision and order of the Appellate Division, reinstate the indictment, and remand the case for further proceedings.

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CONCLUSION The order of the Appellate Division should be reversed, the indictment reinstated, and the case remanded for further proceedings.

Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY:

Vincent Rivellese Assistant District Attorney Of Counsel

HILARY HASSLER VINCENT RIVELLESE Assistant District Attorneys Of Counsel July 15, 2011

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