Defendant Aijin Chen, charged with Forcible Touching (PL § 130.52 [1]) ("Count One"), and Sexual Abuse in the Third Degree (PL § 130.55) ("Count Two"), moves for an order dismissing the superseding information on the ground that it is facially insufficient. The defendant also moves for discovery-related relief. For the reasons set forth below, the defendant's motions are granted in part and denied in part.

I. Factual Allegations

The criminal court superseding information alleges that on December 8, 2024, at approximately 1:45 p.m., inside 406 Avenue of the Americas, New York, New York, the complainant was lying face-down on a table for a massage. As the complainant lay on the table, the defendant lifted the complaining witness's right hand and placed it onto the massage table. The defendant then placed his own penis in the complainant's right hand. The complainant felt the defendant repeatedly move his body back and forth "while the defendant's penis was in [the complainant's] right hand." The complainant did not consent to this conduct.

II. Legal Standards

An information must contain factual allegations providing reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information, and non-hearsay factual allegations establishing, if true, that the defendant committed every element of the offense charged (CPL 100.40 [1] [b]-[c]). This latter requirement — the "prima facie case requirement" — "'is not the same as the burden of proof beyond a reasonable doubt required at trial,' nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial" (People v Smalls, 26 NY3d 1064, 1066 [2015], quoting People v Kalin, 12 NY3d 225, 230 [2009]). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately [*2]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" (People v Casey, 95 NY2d 354, 360 [2000]).

III. Analysis

(A) Facial Sufficiency

The defendant moves to dismiss the superseding information as facially insufficient. For the reasons set forth below, the motion is denied.

i. Forcible Touching

a. Sexual or Intimate Parts

A person commits 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 (PL § 130.52 [1]). The defendant argues that the superseding information fails to allege that he touched a sexual or intimate part of the complainant, because the complainant's hand does not constitute a "sexual or intimate" body part. The Court disagrees.

"In determining what is 'intimate,' the courts have looked beyond the mere anatomical location of the part to consider in what way the acts were proscribed by general social mores" (People v Graydon, 129 Misc 2d 265, 267 [Crim Ct, New York County 1985] [finding that an 11-year-old girl's leg constitutes an intimate part]). "[S]ince 'intimacy is a function of behavior and not merely anatomy,' the manner and circumstances of the touching should also be considered" (People v Sene, 66 AD3d 427, 428 [1st Dept 2009] [finding that the neck qualifies as an intimate part]). Courts thus consider the following factors: "the area of the body" that is touched; the "manner of the touching"; and "under what circumstances" the touching occurred. (Graydon, 129 Misc 2d at 267). In applying these factors, "[c]ourts have routinely found that zones of the body generally considered non-erogenous in nature constitute 'intimate parts' given the circumstances surrounding their contact" (People v Dunkley, 79 Misc 3d 703, 705 [Sup Ct, New York County 2023] [feet deemed to be an intimate part]; see also People Torres, 220 AD3d 514 [1st Dept 2023] [lower back is an intimate part]; People v De Oliveira, 80 Misc 3d 1227(A) [Mount Vernon City Ct 2023] [face is an intimate part]; People v Belfrom, 124 Misc 2d 185 [Sup Ct, Queens County 1984] [navel is an intimate part]).

It is true that, in many circumstances, a hand would not be considered an intimate body part. Individuals may, for example, shake hands upon meeting for the first time. Indeed, an individual "stroking" another's hand with his own has been determined insufficiently intimate to support a forcible touching charge (see Matter of Turner v Fischer, 100 AD3d 1310 [3d Dept 2012]).

Here, however, the "circumstances surrounding the alleged contact" and the "manner of the touching," (Graydon, 129 Misc 2d at 267), weigh heavily in favor of intimacy. The complainant was lying face-down, prone on a massage table, expecting to receive a massage from the defendant. Instead, the defendant allegedly lifted the complainant's hand onto the table and placed his penis—an unambiguously intimate part of his own body ^[FN1] —into the complaining [*3]witness' hand.

Moreover, the superseding information does not allege mere contact between the complaining witness' hand and the defendant's penis. Rather, with his penis in the complainant's hand, the defendant then allegedly began moving his body "back and forth": not a single time, but "repeatedly."^[FN2] Under these circumstances, the complainant's hand, while "generally considered non-erogenous in nature" (Dunkley, 79 Misc 3d at 705) constituted an "intimate part" within the meaning of Penal Law § 130.52 (1).

b. Force

The defense "does not concede" that the accusatory instrument sufficiently alleges the requisite force to constitute "forcible touching." Yet "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 touching within the meaning of Penal Law § 130.52" (People v Guaman, 22 NY3d 678 [2014]). Here, the allegation that the Defendant repeatedly moved his body back and forth while his penis was in the complainant's hand reasonably satisfies the low threshold for the forcible element of this crime (see People v Mora, 138 AD3d 641 [1st Dept 2016]).

Accordingly, the motion to dismiss Count One of the information is denied.

ii. Sexual Abuse in the Third Degree

A person is guilty of sexual abuse in the third degree "when he or she subjects another person to sexual contact without the latter's consent" (PL § 130.55). "Sexual contact" is defined, in relevant part, "as any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing" (PL § 130.00 [3]). The defendant asserts that the accusatory instrument is conclusory, in that it does not provide the basis for the complainant's belief that what he felt placed in his hand was the defendant's penis. He argues that a penis is uniquely difficult to identify by touch alone.

At the pleading stage, viewing the facts in the light most favorable to the People and in a fair and not overly restrictive manner, the Court finds the allegations sufficient to support the claim that the complaining witness was able to identify a penis by touch. To the extent that the defendant seeks to raise an evidentiary claim, this factual issue can be resolved at trial (see People v Drelich, 32 NY3d 1032, 1033 [2018]; Casey, 95 NY2d at 360). Accordingly, the [*4]motion to dismiss Count Two of the information is denied.

(B) Remaining Motions

The defendant's motion for a Huntley/Dunaway hearing is granted.

The defendant's motion for a Wade hearing is granted.

The defendant's motion requesting a hearing to determine the voluntariness of any non-noticed statements that the defendant made to police officers, which the People intend to use on cross-examination, is denied at this time, subject to renewal before the trial court.

The defendant's motion requesting a hearing to determine the voluntariness of statements made by the defendant to civilians is denied at this time, subject to renewal before the trial court.

The motion for a bill of particulars is denied. The material contained in the accusatory instrument, together with the discovery the People must produce pursuant to CPL Article 245, provide the information to which the defendant is entitled.

The defendant's motions for orders directing the People to comply with CPL 245.55(2) and 245.55(3) are denied. The People's obligation to provide the requested information is set forth in the statute.

The Defendant's motion seeking preservation and Brady Orders are granted to the extent that the People have a continuing obligation to comply with their disclosure obligations pursuant to Brady v Maryland, 373 US 83 (1963), Giglio v United States, 405 US 150 (1972), People v Geaslen, 54 NY2d 510 (1981), and their progeny.

The Court declines to order the People to file an additional certificate of compliance. (CPL 245.35 [3])

The Defendant's motion for a Sandoval hearing is reserved for decision by the trial court.

This opinion constitutes the decision and order of the Court.