Defendant, charged with two counts of forcible touching (Penal Law § 130.52), two counts of sexual abuse in the third degree (Penal Law § 130.55) and two counts of public lewdness (Penal Law § 245.00), now moves to dismiss all counts as facially insufficient (CPL 170.30 and 170.35). For the reasons set forth below, defendant's motions to dismiss are DENIED. Defendant's remaining motions are decided as set forth below. ^[FN1]

To be facially sufficient, an information must contain non-hearsay factual allegations providing reasonable cause to believe that the People can prove every element of the crime charged (CPL 100.40 [1] [a]-[c]; see also People v Alejandro, 70 NY2d 133 [1988]; People v Dumas, 68 NY2d 729 [1986]; People v Case, 42 NY2d 98 [1977]). A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (CPL 100.40, 100.15; People v Jackson, 18 NY3d 738, 747 [2012]). Allegations are sufficient for pleading purposes where they provide adequate notice to enable a defendant to prepare a defense and protect against double jeopardy (People v Kasse, 22 NY3d 1142 [2014]). That other, innocent inferences could possibly be drawn from the facts is irrelevant at this pleading stage inquiry (People v Deegan, 69 NY2d 976, 979 [1987]). A valid information need not disprove every potential defense (People v Cox, 44 Misc 3d 134[A] [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2014]).

October 2, 2015, defendant was arraigned on a criminal complaint charging two counts of forcible touching (Penal Law § 130.52), two counts of sexual abuse in the third degree (Penal Law § 130.55), and two counts of public lewdness (Penal Law § 245.00). The court adjourned [*2]the case to October 7, 2014 for conversion to an information. On October 7, 2015, the parties appeared before the court. The court granted the People's application to strike the last paragraph of the factual allegations in the criminal complaint. The People served and filed the supporting deposition of the informant officer. The court deemed the complaint an information, set a motion schedule and adjourned the case to November 17, 2015. On November 4, 2015, defendant timely served and filed his omnibus motion. On November 17, 2015, the parties appeared before the court and the People served and filed their response and "Voluntary Disclosure Form". The court adjourned the case to January 12, 2016 for decision.

The information sets forth the following factual allegations:

"On or about October 1, 2015, at approximately 3:00 PM, [deponent] observed the defendant on the subway platform at 125 Street and Lexington [Avenue] in the County and State of New York. At about 5:00 PM, [deponent] again observed the defendant standing on the same subway platform. [Deponent] observed defendant remain on the platform as four northbound trains entered the station. Each time a train arrived, [deponent] observed the defendant walk toward the doors of the subway train as a crowd of people entered and exited the train. The defendant did not enter any of these four trains.

[Deponent] then observed the defendant look at a female and enter onto a northbound 4 train directly behind this female. [Deponent] observed the defendant stand directly behind this female. [Deponent] then observed the defendant's erect penis under his sweat pants. [Deponent] observed the defendant rub his erect penis against the female's buttocks.

[Deponent] observed the defendant exit the subway station at 161 street. [Deponent] then observed the defendant enter a southbound 4 subway train. [Deponent] observed the defendant ride on this subway train until we arrived at the 125 Street and Lexington Avenue stop, where I observed the defendant exit the subway train.

[Deponent] then observed the defendant walk to the northbound subway platform. [Deponent] observed the defendant enter a northbound 4 subway directly behind [complainant]. [Deponent] observed the defendant grab his erect penis with his hand through his sweatpants and rub his erect penis against [complainant's] buttocks. [Deponent] observed that [complainant] was frowning, that she looked back at the defendant and that she made a look of discomfort on her face.

I am informed by [informant officer] that he observed the defendant grab his erect penis with his hand through his sweatpants and rub his erect penis against [complainant's] buttocks."

The defendant argues that the information is facially insufficient with respect to the two counts of forcible touching (Penal Law § 130.52) and the two counts of sexual abuse in the third degree (Penal Law § 130.55) because the information fails to allege that the defendant's acts were done without the consent of the two victims. The People have failed to specify under which subsection of forcible touching the defendant is charged, but the statutory language in the information tracks Penal Law § 130.52 (1). A person is guilty of forcible touching under subsection one, "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 [*3]abusing such person, or for the purpose of gratifying the actor's sexual desire" (Penal Law § 130.52 [1]). Lack if consent is also an essential element of the offense of forcible touching (Penal law § 130.05). 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" (Penal law § 130.55). Where the offense charged is sexual abuse or forcible touching, "lack of consent results from any circumstances in which the victim does not expressly or impliedly acquiesce in the actor's conduct " (Penal Law § 130.05 [2] [c]). The present allegations, similar with respect to each victim, are that the defendant surreptitiously approached each woman from behind so that he could rub his erect penis against her buttocks. From these allegations, the court does reasonably infer that neither one of these women expressly or impliedly acquiesced to defendant's conduct. Absent evidence of acquiescence lack of consent is established (Penal Law § 130.05 [2] [c]). Accordingly, the court finds that each count of forcible touching and sexual abuse is sufficiently plead.

With respect to the two counts of public lewdness (Penal Law § 245.00), defendant contends that the information is facially insufficient because the information fails to allege that defendant intentionally exposed his private parts. A person is guilty of public lewdness when "he intentionally exposes the private or intimate parts of his body in a lewd manner or commits any other lewd act in a public place..." (Penal Law § 245.00 [italics added]). Defendant's public actions of rubbing his covered erect penis against the buttocks of two unsuspecting women is behavior that clearly falls within the meaning of "any other lewd act" under Penal Law § 245.00 (see e.g., People v Darryl M., 123 Misc 2d 723, 726 [Crim Ct, New York County 1984]). Accordingly, the court finds that both counts of public lewdness are also sufficiently plead.

Defendant's motions for a Huntley/Wade/Dunaway hearings are granted.

Defendant's motion to preclude unnoticed statement and identification testimony is granted pursuant to CPL 710.30(3).

Defendant's motion for pretrial discovery is granted to the extent provided by the People in their Voluntary Disclosure Form.

Defendant's motion for a bill of particulars is denied.

The People are reminded of their continuing obligations under Brady v Maryland (373 US 83 [1963]).

Defendant's motion for a Sandoval hearing is deferred to the trial court (People v Sandoval, 34 NY2d 371 [1974]).

Defendant's motion for an extension of time to file additional motions is denied, subject to the provisions of CPL 255.20 (3).

This constitutes the decision and order of the court.