People v. Frankie Hatton
AT2 order dated February 7, 2014, reversing judgment of conviction and dismissing the accusatory instrument. Decision below: 42 Misc.3d 141(A), 990 NYS2d 439, 2014 WL 683880. Rivera, J., granted leave to People August 4, 2014. Argued October 14, 2015.
ISSUES PRESENTED: (1) Whether the failure of the factual portion of an information to contain allegations which if true, establish each and every element is a jurisdictional defect which may be raised on appeal despite lack of preservation or a guilty plea. (2) Whether such claim may be waived if defendant’s attorney waived the right to prosecution by information by a blanket waiver of the reading of that right in the context of an unrelated case and outside defendant’s presence. (3) Whether the information failed to mention various elements of forcible touching. (Assigned counsel: Seymour James, Legal Aid Society, Criminal Appeals Bureau, 199 Water Street, NYC 10038.)
Background Facts: Mr. Hatton was accused of hitting a complainant on her buttocks. The accusatory instrument alleged that he had done so on a street at 10:40 pm in view of an eyewitness, causing the complainant to become “alarmed and annoyed.” He had also been accused of forcible touching and related counts by two other accusatory instruments, for what the Court characterized as “identical” alleged conduct.
Issue: Whether the facts alleged here met the standard for an information charging forcible touching.
Held: As an initial matter, the Court found that defense counsel’s waiver of the reading of the rights but not the rights thereunder did not constitute an implied waiver of Mr. Hatton’s right to be prosecuted by information. Thus, the accusatory instrument had to be evaluated for jurisdictional sufficiency according to the standard for an information.
The Court then reinstated Mr. Hatton’s conviction, which the Appellate Term had reversed, finding that alleging “smack[ing] the buttocks” of the complainant easily met the forcible touching element, and contending that the complainant grew “alarmed and annoyed” satisfied the element of non-consent. The harder question for the Court was whether these alleged facts made out the necessary mens rea, but it ultimately held that inferences drawn from the allegations satisfied the pleading standard.
CAL Observes: The debate between the majority and the dissent centered around whether the pleading had to exclude the possibility of legitimate bases for touching to sufficiently allege purpose. The majority resorted to inferences to find that Mr. Hatton had the requisite purpose, but one wonders if it was influenced by Mr. Hatton having been accused of other incidents of similar misconduct that were also disposed of by his guilty plea to this offense, as the factual allegations are sparse and indistinguishable from other situations in which legitimate smacking (such as in self-defense or by accident) might be occurring. What more evidently motivated the Court was a desire not to overly burden the People with alleging facts disproving all inferences in favor of a defendant, though the dissent made clear it was not calling for negation of all defenses but rather affirmatively establishing improper purpose. Clearly ambivalent about the ruling, the Court nonetheless cautioned that conclusory allegations of buttocks-smacking will not pass muster, and courts must continue to evaluate cases on an ad hoc basis—especially where the slippery element of intent is at issue. Where inferences end and speculation begins is still an open question.