DECISION AND ORDER This case stems from two incidents where the defendant, an adult male, allegedly entered apartment buildings in which he did not reside, entered units inside of those apartment buildings, and subsequently exposed his genitalia in a manner that was visible to others present. The core question before this Court is whether the defendant, at any point, committed a “lewd act” as envisioned by the public lewdness statute. Summary of Allegations In the first instance, the defendant was allegedly observed by a building resident jiggling the front door handles of several apartments. When confronted by the resident, the defendant stated that he had touched the resident’s door by mistake and, after asking the resident if she had any drugs, proceeded to enter the unit across the hall, which the resident knew to be empty. Moments later, the resident observed the defendant standing in the hallway, fully naked, asking her if she had any hot water in her unit. On a second occasion, the defendant was allegedly observed by a resident of another apartment building entering into her apartment unit via the unlocked front door. Upon observing the resident’s startled reaction, the defendant backed out of the apartment unit while apologizing. Shortly after, another resident observed the defendant laying on the hallway floor with his pants pulled down and his genitalia exposed. Memorandum of Law The motion to inspect the Grand Jury minutes is granted. Upon inspection of the Grand Jury minutes the motion to dismiss Counts 1, 2, 3, 5, 6 and 8 is granted, with leave for the People to represent the case to the grand jury. While the Grand Jury proceeding itself was procedurally correct, the testimony elicited from the witnesses did not reach the burden of “legally sufficient” evidence to constitute the aforementioned counts, wherein, “if accepted as true, [would] establish the elements of a charged offense and the defendant’s commission thereof.” People v. Corliss, 51 A.D.3d 79, 83 (App. Div. 1st Dept. 2008); citing People v. Jennings, 69 N.Y.2d 103, 115 (NY Ct. App. 1986). Here, the Grand Jury minutes fail to demonstrate that the defendant committed the act of public lewdness, namely that, although it is alleged on both occasions that the defendant exposed his penis in a public place, there is no evidence of the defendant committing any “lewd act” that accompanied said exposure. “Under the law nudity in itself is not prohibited and lewdness cannot be presumed from the mere fact of nudity. There must be a showing of lewd conduct from which the intention to act in a lewd manner can be drawn.” People v. Hardy, 77 Misc. 2d 1092, 1093 (App. Div. 2nd Dept. 1974) (Dismissing a public lewdness charge against a woman who was sunbathing topless on a beach, holding that “no evidence was introduced establishing that defendant had intentionally exposed her private parts in a public place in a ‘lewd manner’ or otherwise committed a ‘lewd act’, her guilt was not established beyond a reasonable doubt.”); see also People v. Gilbert, 72 Misc.2d 75, 77 (Kings County Crim. Ct. 1972) (Holding that a woman sunbathing topless on a beach did not satisfy the “lewd act” requirement of the public lewdness statute); Matter of Excelsior Pictures Corp. v. Regents of the University of the State of New York, 3 N.Y.2d 237, 242 (NY Ct. App. 1957) (“Nudity in itself and without lewdness or dirtiness is not obscenity in law or in common sense…For more than a century the New York courts have held that exposure of the body to the view of others is not criminal if there is no lewd intent.”); People v. Ulman, 258 A.D. 262, 263 (App. Div. 1st Dept. 1939) (In the context of an exposure of a person charge, “The intent with which the act is committed, forms a material ingredient of the offense. If it appears that the exposure was not the wanton and lewd conduct which the statute condemns but was unintentional, the crime has not been committed. […] Here the testimony indicates that if there was any apparent misconduct, it was due to accident and not to design.”) In People v. Fibble, 49 Misc. 3d 1220(A) (Kings County Crim. Ct. 2015), the Court upheld the facial sufficiency of a public lewdness charge wherein the “defendant was inside a playground with his pants at his ankles and his genitals exposed where children were playing,” holding that the “time, place and manner in which conduct allegedly occurred matters.” Id. at 3. Here, however, the defendant’s nudity in the hallways of private apartment buildings in the presence of only adult witnesses does not rise to such a level of offensive behavior that was distinguished by the Fibble Court. Seeing as the counts of public lewdness are the only qualifying crime that predicate the burglary counts, the burglary charges must also be dismissed as facially insufficient, leaving the indictment with two counts of criminal trespass in the second degree. The defendant’s remaining motions are decided as follows: Based on the Court’s review of the Grand Jury minutes, the defendant’s request for a Wade/Dunaway hearing is denied. 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 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. 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 People’s request for reciprocal discovery is granted. The defendant is ordered to comply with the reciprocal discovery requirements set forth in CPL §§245.20 (4) and CPL §250.20 and file a Certificate of Compliance pursuant to CPL §§245.50 (2). The People are reminded to adhere to their Brady/Vilardi obligations. The defendant’s request for a Sandoval hearing is granted and deferred to the trial court. This constitutes the Decision and Order of the Court. Dated: June 11, 2024
