People v Rowe

Criminal Court of the City of New York, New York County

Decided on March 30, 2026

CR-015930-25NY

Ilona B. Coleman, J.

The defendant moves to dismiss the charges against her on two grounds. First, the defense argues that the accusatory instrument must be dismissed for failing to allege with sufficient precision when the criminal acts occurred (see People v Sedlock, 8 NY3d 535, 538 [2007]). Second, the defense argues that the fifth and sixth counts of the information — charging the defendant with PL §§ 130.52 (1) and 130.55 for "touch[ing] [the complainant's] face then plac[ing] her finger in [the complainant's] ear" — are facially insufficient (CPL 100.40 [1]). The People consent to the dismissal of the fifth count (PL § 130.52 [1]) but otherwise oppose.

I. Relevant Facts

On May 22, 2025 the defendant was arraigned on a misdemeanor complaint charging her with three counts each of PL §§ 130.52 (1) and 130.55 in connection with three separate incidents. Specifically, the complaint alleged that "between on or about May 7, 2025 to on or about May 20, 2025," the defendant "place[d] her hand under [the complainant's] shirt then grab and squeeze her breast." The complaint also alleged that, during the same date range, the defendant "squeeze[d] and slap[ped] [the complainant's] buttocks with an open palm." It further alleged that "on or about May 20, 2025," the defendant "touch[ed] [the complainant's] face then place[d] her finger in [the complainant's] ear." The complaint alleged that the complainant did not consent to any of the conduct. The People assert in their opposition that at the time the complaint was drafted, they had not yet conducted an independent investigation regarding the alleged conduct and that the complaint was based on information provided by a police officer. On June 26, 2025, the People spoke directly with the complainant. The complainant did not [*2]remember the exact date on which each of the alleged incidents occurred. The complainant explained that she knew that the incident in which the defendant grabbed her breast occurred first. She also knew that the third incident occurred on May 20, 2025, because it occurred the day before she reported it to shelter staff. She further knew that at least one day elapsed between each incident. The People requested records from the women's shelter where the incidents allegedly occurred "in hopes that the records would further corroborate the dates of the incidents alleged" (People's affirmation, p. 3).

Based on the information provided by the complainant, the People filed a superseding information (SSI). The SSI does not amend the substantive allegations but narrows the timeframe for the first incident to "[o]n or about May 7, 2025 to on or about May 18, 2025," and for the second incident to "[o]n or about May 9, 2025 to on or about May 18, 2025." The SSI does not alter the timeframe related to the third incident. On July 17, 2025, the defendant was arraigned on the SSI.

On February 13, 2026, the defense filed the instant motion to dismiss. On March 5, 2026, the People filed their opposition, and on March 16, 2026, the defense filed a reply brief.

II. Motion to Dismiss for Insufficient Notice

An accusatory instrument need not specify an "exact date and time," but the "interval of time set forth . . . must reasonably serve the function of protecting defendant's constitutional right to be informed of the nature and cause of the accusation" (People v Sedlock, 8 NY3d 535, 538 [2007]). The allegations must be stated with sufficient precision to enable the defendant to prepare a defense and to ensure the defendant is not prosecuted twice for the same offense (People v Morris, 61 NY2d 290, 295 [1984]; see also People v Oliveros, 69 Misc 3d 130[A], [App Term, 1st Dept 2020]). Whether the allegations provide adequate notice "must be made on an ad hoc basis by considering all relevant circumstances" (id.). Relevant factors include, but are not limited to, "the span of time set forth[;] the knowledge the People have or should have of the exact date or dates of the crime; the age and intelligence of the victim and other witnesses; the surrounding circumstances; and the nature of the offense" (People v Sanchez, 84 NY2d 440, 448 [1994] [quoting Morris, 61 NY2d 290] [internal quotations and citations omitted]).

As an initial matter, an accusatory instrument must "state the date and time of the offense to the best of the People's knowledge, after a reasonably thorough investigation has been undertaken to ascertain such information" (Morris, 61 NY2d at 296). Here, the People have satisfied that requirement. After the case was initiated, the People interviewed the complainant to obtain a more precise timeline. The complainant told them that she did not remember the precise dates of the first two alleged incidents and had not contemporaneously memorialized the incidents. Nevertheless, she provided some additional details, and the People narrowed the time frame in the accusatory instrument accordingly. The People also attempted to obtain further information regarding the timeframe from the shelter where the incidents allegedly occurred but were unsuccessful. This reflects a "reasonably thorough investigation," and there is no evidence in the record that the People have additional, more precise information that they are withholding to secure a strategic advantage over the defense (Morris, 61 NY2d at 296).

Overall, the court concludes that the time periods are reasonable under the circumstances (Morris, 61 NY2d at 296). First, the time periods alleged in the SSI — twelve days for the first incident, ten days for the second incident, and one day for the third incident — are well within the range courts have typically upheld as reasonable (see, e.g., People v Watt, 84 NY2d 948, 951 [1994] [five-month period was reasonable], Morris, 61 NY2d at 296 [24-day period was [*3]reasonable], Oliveros, 69 Misc 3d 130(A) [25-day period was reasonable]; compare, e.g., People v Bennett, 57 AD3d 688, 690 [2nd Dept 2008] [seven-month period was unreasonable], People v Beauchamp, 74 NY2d 639, 641 [1989] [nine-month period was unreasonable], People v Boyette, 41 Misc 3d 48, 51 [App Term, 2nd Dept 2013] [seven-year period was unreasonable]). The defense has not identified any case in which a court has held such a narrow window to be constitutionally unreasonable. Although the complainant is an adult and thus held to a higher expectation of specificity than a child complainant, she has provided a precise date for one incident and a reasonable explanation for her inability to determine the dates of the others. The incidents occurred over the course of two weeks, during which time the defendant and the complainant were living in the same shelter. The complainant did not memorialize or contemporaneously report the first two incidents to the police or shelter staff. The People further explain that the complainant initially attempted to ignore the defendant's behavior in the hope that it would cease.

The notice provided is adequate to afford the defendant an opportunity to prepare a defense. While the dates of the first two alleged incidents are not precise, the defendant otherwise has specific notice of the allegations against her as the SSI contains the complainant's name and the precise location of the alleged incidents. Further, the defendant was arrested and charged only one day after the third alleged incident and at most two weeks after the first, when her interactions with the complainant would be fresh in her mind. The only prejudice identified by the defense is its asserted inability to investigate potential alibi defenses; however, as the Court of Appeals has recognized, that concern arises in every case in which the prosecution cannot specify the precise time and location of the alleged crime (see Morris, 61 NY2d at 297). The Federal and New York State Constitutions do not require such precision in every case (see id.).

Because the People have "state[d] the date[s] [. . .] of the offense[s] to the best of [their] knowledge," and because the time periods alleged in the SSI are reasonable under the circumstances, the motion to dismiss for insufficient notice is DENIED (Morris, 61 NY2d, 295-297).

III. Facial Sufficiency

To be facially sufficient, an information must "set forth facts that establish reasonable cause to believe that the defendant committed the charged offense," and it must "set forth nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof" (People v Smalls, 26 NY3d 1064, 1066 [2015] [internal quotations and citations omitted]; see also CPL 100.40 [1]). An information that "fail[s] to allege a complete element of the charged offense is jurisdictionally defective," and any such defective charge is subject to dismissal (People v Kalin, 12 NY3d 225, 229 [2009]).

First, the People correctly concede that the allegations related to the third incident are insufficient to establish the "forcible" element of PL § 130.52 (1) (People v Zaragoza, 195 AD3d 522, 523 [1st Dept 2021]). The Court of Appeals has held that "any bodily contact involving the application of some level of pressure . . . qualifies as a forcible touch" (People v Guaman, 22 NY3d 678, 684 [2014]). The allegations here fail to meet even this minimal standard. An allegation that a defendant "touched" an intimate part, absent "any facts consistent with the application of pressure," is insufficient to support this charge (Zarazoga, 195 AD3d at 523). Here, the SSI alleges only that the defendant "touch[ed] [the complainant's] face then place[d] her finger in [the complainant's] ear." Neither "touching" nor "placing" inherently [*4]involve any "application of . . . pressure," and thus this charge is dismissed (Guaman, 22 NY3d at 684).

The People maintain, however, that the same allegations are sufficient to support the charge of PL § 130.55. Section 130.55 provides that "[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 § 130.00 (3) defines "sexual contact" as "any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party." The defense argues both that (1) the ear is not a sexual or intimate part of the body, and (2) that the allegations do not support the inference that the action was for the purpose of gratifying sexual desire. While the ear is not typically considered a sexual part of the body, it may well qualify as an intimate part because, "under general societal norms," the ear — especially the inside of the ear, as alleged in this case — is "sufficiently personal or private that it would not be touched in the absence of a close relationship between the parties" (People v Sene, 66 AD3d 427, 427 [1st Dept 2009] [referencing the touching of a neck]).

That said, even if the ear is an "intimate part," the allegations are insufficient to support an inference that the defendant touched the complainant's ear "for the purpose of gratifying sexual desire" (PL 130.00 [3]). The People argue that "intent may be inferred from the act itself" (People v Hatton, 26 NY3d 364, 370 [2015]). Standing alone, though, a finger in the ear seems far more likely to cause irritation and discomfort to the complainant than sexual gratification for either party. Accordingly, insofar as the defendant's intent may be inferred from the conduct at issue here, that intent does not appear to be sexual. The SSI contains almost no information about the setting or manner of the touching (see Hatton, 26 NY3d at 372 ["Factors such as defendant's expressive conduct, the surrounding circumstances, the location of the incident and the existence of a prior relationship or a common understanding between the parties, may support or negate an inference that defendant harbored the statutory purpose."]). The SSI does not indicate whether the incident occurred at night in a private setting or in the morning in a public area. It includes no statements from the defendant before, during, or after the incident. It does not specify the manner of touching — e.g., stroking, scratching, pulling, poking. The defendant's alleged touching of the complainant's face immediately prior to touching her ear adds little to the analysis, as the SSI provides no details regarding the manner in which the face was touched. The People emphasize that this incident occurred after two prior instances of more clearly sexual touching within the preceding two weeks. However, in the court's view, where the details of the incident seem inconsistent with sexual intent, the defendant's prior alleged criminal acts are insufficient to support the mens rea element of the offense.

Because the SSI does not allege that the defendant touched the complainant's ear forcibly or for the purpose of sexual gratification, the PL §§ 130.52 (1) and 130.55 charges stemming from the May 20, 2025 incident are facially insufficient and jurisdictionally defective. The motion to dismiss the fifth and sixth counts of the information is therefore GRANTED.

This constitutes the decision and order of this court.

March 30, 2026

New York, NY

Ilona B. Coleman, J.C.C.