Supreme Court, New York County, March 30, 2023

The Legal Aid Society (Allen Farbman and Kirk Stadnika of counsel) for defendant.

Alvin Bragg, District Attorney (Maria Luna of counsel), for the People.

The motion to inspect the grand jury minutes is granted. Upon inspection of the grand jury minutes the motion to dismiss the indictment or reduce the crimes charged therein is denied. The evidence presented to the grand jury established a prima facie case of the defendant's commission of the crimes charged in the indictment.

The defendant moves to dismiss count 1 of the indictment, sexual abuse in the first degree, Penal Law § 130.65 (3), and count 3 of the indictment, sexual abuse in the third degree, Penal Law § 130.55, arguing that contact between the defendant's lips and the feet of both child victims does not constitute sexual contact with an "intimate part" of the body for the purposes intended by the statute. As a threshold matter, the common-law policy of strictly construing a statute is no longer applicable in New York State; instead, courts are urged to interpret statutes "according to the fair import of their terms to promote justice and effect the objects of the law." (People v Ditta, 52 NY2d 657, 660 [1981], quoting Penal Law § 5.00.) Therefore, courts may dispense with "hypertechnical or strained interpretations of the statute" and "conduct that falls within the plain, natural meaning of the language of a Penal Law provision may be punished as criminal." (Id.) When determining whether a complainant has been subjected to sexual contact of an "intimate part," the court may take into consideration "the manner and circumstances of the touching." (People v Sene, 66 AD3d 427, 427-428 [1st Dept 2009]; see also People v Graydon, 129 Misc 2d 265, 268 [Crim Ct, NY County 1985] [Employing a three-part analysis when determining whether a part of the body is considered intimate: (1) what area of the body is touched, (2) the manner of the touching, and (3) the circumstances under which the touching took place].)

"The abuse of one's body and privacy with the intention to obtain sexual gratification on the part of the abuser is sufficient to constitute sexual abuse. . . . There is no requirement {**79 Misc 3d at 705}that erogenous zones of the victim be touched or manipulated by the aggressor." (Matter of David M., 93 Misc 2d 545, 548-549 [Fam Ct, Bronx County 1978].) Courts have routinely found that zones of the [*2]body generally considered non-erogenous in nature constitute "intimate parts" given the circumstances surrounding their contact. For example, necks,^[FN1] navels,^[FN2] ankles,^[FN3] and legs^[FN4] have all been deemed to be "intimate parts" of the body. In fact, this court has previously ruled that a complainant's stomach constituted an "intimate part" of the body based on the circumstances surrounding the contact.^[FN5]

Here, the defendant is accused of unprovokedly approaching a 14-year-old complainant at a church social event by pretending to trip to the floor, thus making his head level with the child's bare foot. The defendant, a stranger to the child, allegedly proceeded to grab the child's foot with his hand, and state in substance "cute little feet" while he pressed his lips to the inside bottom arch of the child's foot.

In a second instance, the defendant is accused of unprovokedly approaching a nine-year-old child at a social event at the same church, removing the child's shoe, and placing the child's bare foot on his lap. The defendant then allegedly commented{**79 Misc 3d at 706} that the child's foot was "sweaty" and needed to be "aired out" and proceeded to kiss the bottom of the child's foot "more than eight times" while making a moaning noise. The defendant only ceased kissing the child's foot when he was approached by another adult who observed the defendant's odd behavior and noticed that the child appeared visibly uncomfortable.

In determining whether the children's feet constitute "intimate parts" of the body, this court will follow the rubrics employed in Sene and Graydon, and take into consideration (1) what area of the body is touched, (2) the manner of the touching, and (3) the circumstances under which the touching took place.

First, the defendant touched the bare feet of a nine-year-old child and a 14-year-old child. Second, the defendant repeatedly pressed his lips to the bottoms of the children's feet to kiss them. Third, the defendant appears to have taken steps to conceal his behavior: in one instance entering a room full of children and seemingly void of adults, and in the other instance saying "whoops" and pretending to trip and fall to the floor so that his mouth was level with the child's foot. The defendant further made comments such as "cute little feet" to the 14-year-old child and appeared to be moaning while he repeatedly kissed the feet of the nine-year-old child. This court will also consider the young age of the children compared to the age of this adult defendant, as well as the fact that the defendant's actions towards the children, who were complete strangers to him, fly in the face of societal norms. Considering the totality of the circumstances, the children's feet clearly constitute "intimate parts" of their bodies. For these reasons, the defendant's motion to dismiss count 1 and count 3 is denied.

The motion to dismiss the indictment on the grounds that the grand jury proceeding was defective within the meaning of Criminal Procedure Law § 210.35 is denied. The defendant has not provided the court with any evidence of a defect in the grand jury proceedings nor do the grand jury minutes reflect any such defect. The application for the release of the grand jury minutes is denied.

The defendant's request for a bill of particulars is denied. The automatic discovery form previously filed in this case provides all the particulars to which the defendant is entitled. (See CPL 200.95.)

The defendant's request for a Huntley/Dunaway hearing is granted as to both statements.{**79 Misc 3d at 707}

The defendant's request for a Wade hearing is granted as to the three photo array identifications.

As to any outstanding discovery sought by the defense, the People are ordered to turn over any outstanding discovery outlined in CPL 245.20 that is not subject to delayed disclosure within 15 days of the issuance of this order.

The defendant's request that the People be required to file an additional certificate of compliance pursuant to CPL 245.35 (3) is denied, as the defendant has not alleged any particular action by the People that would demonstrate a need for an additional certificate of compliance.

The defendant's request to preclude unnoticed statement and identification evidence is granted to the extent that there exists any unnoticed statements or identifications which would be subject to the requirements of CPL 710.30.

The People are reminded to adhere to their Brady/Vilardi obligations.

The defendant's request for a Sandoval hearing is granted and the hearing is deferred to the trial court.