Defendant, Kawser Mustafa, is charged with Forcible Touching, Penal Law (PL) § 130.52 and Sexual Abuse in the third degree, PL § 130.55.

Defendant moves in an omnibus motion for an order dismissing the Forcible Touching charge for facial insufficiency, precluding at trial the use of Defendant's prior criminal history or prior uncharged criminal, vicious, or immoral conduct, and reserving the right to make additional motions if necessary.

An information is facially sufficient if the factual section contains allegations of an evidentiary nature demonstrating reasonable cause to believe that the defendant committed the [*2]offense charged (CPL 100.15, 100.40 [1][b]). The facts must be supported by non-hearsay allegations which establish, if true, every element of the charged offense (CPL 100.40 [1] [c]; People v Alejandro, 70 NY2d 133, 135 [1987]). The standard for pleading a prima facie case is not nearly so stringent as the burden of proof beyond a reasonable doubt required to convict (see People v Henderson, 92 NY2d 677, 680 [1999]). While the factual allegations of an information must give a defendant sufficient notice to prepare a defense and prevent a defendant from being twice tried for the same offense, they should be given a fair and not overly restrictive reading (see People v Casey, 95 NY2d 354, 360 [2000]).

A person is guilty of Forcible Touching when he intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading and abusing such person, or for the purpose of gratifying the defendant's sexual desire (PL § 130.52). The statutory examples include squeezing, grabbing or pinching. There is no requirement that the victim actually suffer any degree of degradation or abuse, or that the actor experience any actual gratification; the requirement is only that the touching be for the "purpose" of degrading or abusing the victim or for the "purpose" of gratifying the defendant's sexual desire (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, 2005 Electronic Update, Penal Law § 130.52 citing People v Teicher, 52 NY2d 638, 646 [1981]).

Here, the information states the following:

Defendant tacitly concedes that a woman's breast is a sexual or intimate part of the body and that a person can be guilty of Forcible Touching even if the contact is through clothing. Defendant's sole contention is that because there is no allegation that he touched the sexual or other intimate parts of the complainant, the information is insufficient.

The accusatory instrument alleges that Defendant grabbed the complainant's brassiere. Under our societal norms, a woman's brassiere is an intimate undergarment that would not ordinarily be touched in the absence of a close relationship between the parties (People v Sene, at 427). Moreover, "unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other's person and therefore as partaking of its inviolability is actionable as an offensive contact with his person. There are some things such as clothing , indeed, anything directly grasped by the hand which are so intimately connected with one's body as to be universally regarded as part of the person" (see Official Comment to Restatement [Second] of Torts § 18).

Defendant admits that the actions alleged could have involved touching complainant's breast, but argues that the brassiere could have also been removed without ever touching her breast. The Court of Appeals has cautioned against "hypertechnical or strained interpretations" of the sexual abuse statute (People v Sene, 66 AD3d 427 (1st Dept. 2009); People v Ditta, 52 NY2d 657, 660 [1981]). ). Moreover, in determining facial sufficiency, a court need not ignore common sense or the significance of the alleged conduct (Gonzalez, 184 Misc 2d 262, 264 [App Term, 1st Dept 2000]). A trier of fact could reasonably conclude that Defendant committed the offense charged.

Defendant's motion to preclude the prosecutor from using at trial evidence of Defendants prior convictions, arrests or bad acts pursuant to People v. Sandoval, 34 NY2d 371 [1974] is reserved for the trial court.

Defendant's motion for pretrial discovery and a bill of particulars is granted to the extent provided by the People in their Voluntary Disclosure Form. CPL § 240.20 delineates the items discoverable from the prosecutor and CPL § 240.20(2) provides for the defendant's securing by subpoena any of these items not in the possession of the prosecutor. The People are reminded of their continuing obligations under Brady v Maryland, 373 US 83 (1963) and People v Rosario, 9 NY2d 286 (1961), cert. denied, 368 US 866 (1961).

This opinion constitutes the Decision and Order of the Court. A copy of the decision will be mailed to the parties and placed in the court file.

New York, New York

E N T E R:

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Lisa A. Sokoloff, J.C.C.