Hofstra Student’s Public Lewdness Charge, Penal Law 245, stands

A college student’s inappropriate behavior became criminal in class. “Defendant is accused by information of public lewdness (see Penal Law §245.00) on account of an incident that is alleged to have occurred in an accounting class at Hofstra University on September 3, 2014.” Id. at 1. “[A] person is guilty of public lewdness “when he [or she] intentionally exposes the private or intimate parts of his [or her] body in a lewd manner or commits any other lewd act…in a public place.” Id. at 10 (citing Penal Law §245.00(a). The accusatory instrument alleges that a text message was sent by one student to another student, the complaining witness, asking the complaining witness to “touch it” and exposing his erect penis. There were about twenty other students and a teacher in the classroom at the time. Although a private institution, the Court finds little issue in finding a Hofstra classroom a public place.

The standard for sufficiency is as follows:

It is well-settled that an information is sufficient only if it both provides reasonable cause to believe that the person named in it committed the offense charged, and contains sworn, non-hearsay allegations of fact supporting every element of that offense, and that person’s commission thereof (see CPL 100.15, 100.40[1]). Concrete, non-hearsay factual allegations are sufficiently supportive of an element of the offense charged if they give rise to a reasonable inference that the named defendant committed that particular element or acted with the requisite mental culpability (see People v. Henderson, 92 NY2d 677, 685 NYS2d 409 [1999]; People v. McGee, 204 AD2d 353, 611 NYS2d 261 [2d Dept 1994]; People v. Li, 192 Misc2d 380, 745 NYS2d 683 [Nassau Dist Ct, 2002]; People v. Coyle, 186 Misc2d 772; 719 NYS2d 818 [Nassau Dist Ct 2000]), but conclusory statements, unsupported by facts, are inadequate (cf. People v. Dumas, 68 NY2d 729, 506 NYS2d 319 [1986]). An information thus must demonstrate the existence of a prima facie case (People v. Henderson, supra), but the prima-facie-case requirement is not the same as the burden of proof beyond a reasonable doubt (id. at 680, 685 NYS2d at 411). When ruling on the sufficiency of an information, a court must accept the factual allegations as true (cf. People v. Casey, 95 NY2d 354, 717 NYS2d 88 [2000]; People v. Henderson, supra), but the court is limited to reviewing the facts as they are set forth in the four corners of the accusatory document (see People v. Voelker, 172 Misc2d 564, 658 NYS2d 180 [Crim Ct, New York County, 1997, Morgenstern, J.]; cf. CPL 100.40[1]).

Id.at 9-10 (external quotation marks omitted and internal citations preserved). Although the People enclose reproduced text messages, that documentation is hearsay. The Court refuses to dismiss on this ground alone. But what about intent, what about the exposure in a public place? “Ms. Brackman attests to what she directly observed, and she thereby demonstrates prima facie that Defendant exposed his private parts, and that he did so in a lewd manner, acts from which his intent to commit them can be inferred” Id. at 11. Hofstra, like a private car in public view the court finds, is public for the statute’s purposes; therefore, “in addition to establishing prima facie the other elements of the crime Defendant is accused of, they have also properly established that the event occurred in a public place. Defendant’s application for an order dismissing the accusatory instrument is accordingly denied.” Id. at 14

Although no reply was filed by Defendant, the people consented to a Huntley hearing and the Court so Orders the same; Holding that ” Defendant’s motion for an order dismissing the accusatory instrument as facially defective, or, alternatively, suppressing a statement the People attribute to him, is granted to the extent that the issue of whether a statement the People attribute to Defendant should be suppressed as the product of threats, coercion, improper promises, or on account of a violation of the requirements of Miranda v. Arizona (384 US 436 [1966]) is set down for a pre-trial hearing.” Id. at 1.

The case is The People v. Peterson, 2015NA023865, NYLJ 1202769905637, at 1 (Dist., NA, Decided September 27, 2016)



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