What if you were riding on the subway one morning, eyes locked into your iPhone playing pool or browsing through Instagram, when you are rocked by a passenger sitting across from you who starts screaming, and your heart freezes as you realize the screaming is about you. The passenger announces to the crowded car that you exposed yourself. You are stunned into silence as you are surrounded by police and escorted off the train and arrested for public lewdness. What would you do? What could you do?
This week’s case puts us on the A train as it roars downtown from 175th Street to 34th Street, making five stops on the way. George is talking to his friend as they headed downtown to work, zoning-out the chatter of the crowded rush hour train. George never made it to work that morning. He was arrested for public lewdness as he was accused by a woman who sat down next to him.
This is his trial.
Testimony of Victoria • The Victim
Q. What happened to you on the subway on the day in question?
A. It all really happened so fast, it’s hard to remember all the details. But there was this old guy sitting next to me.
Q. Did the old guy say anything to you?
A. No, he was talking to someone next to him. But the old guy was exposing his private parts and like touching himself…
Q. How long was he touching himself?
A. For a few minutes.
Q. With his hands?
A. With his thumbs.
Q. Was the train crowded while this was going on?
A. Yes. It was rush hour, so the train was pretty packed.
Q. Did you say anything to him?
A. No, I just screamed.
Q. Did anyone else say anything to him?
A. No, I was in shock…
Q. Did you have an iPhone with you?
A. Yes.
Q. Did you take a picture of the man so that you could identify him?
A. No.
Q. Did you speak to any of the other passengers that were nearby?
A. No. I just spoke to the cops and they took him.
Testimony of George
Q. How old are you, sir?
A. 50.
Q. Where were you going on the day in question?
A. I was going to work with Cedeno.
Q. Who is that?
A. He is my supervisor at work.
Q. Is he also your friend?
A. Yes.
Q. Where was Cedeno sitting in relation to you?
A. He was seated near me but not right next to me. We were talking about the game that was played the night before. We had a disagreement about one of the players.
Q. You were fighting?
A. No, not at all. We always talked about sports on our way into work.
Q. Where was he seated in relation to Victoria?
A. She was seated perpendicular to him.
Q. Did you expose yourself to Victoria during that train ride.
A. No, never. I have never done anything like that and I have never been accused of doing anything like that, ever. This is a nightmare.
Q. Were you touching yourself or scratching yourself in the private parts area of your body at anytime during the train ride?
A. No, sir, I did not.
Testimony of Cedeno
Q. Were you seated next to George during the entire ride on the train?
A. Yes, the whole ride.
Q. Did George expose himself or touch his private parts during the entire ride?
A. Absolutely not. I would have knocked him out. Seriously. He would never do that.
Judge Phyllis Chu's Verdict
JUDGE: I believe Victoria’s testimony and found George’s witness not to be credible. I find that the evidence established that George exposed his penis and masturbated on a subway train. Therefore, I FIND George GUILTY of public lewdness and exposure of a person.
The Appeal
The conviction was upheld on appeal.
But one of the judges disagreed with the verdict. The judge wrote that he was “left with a very disturbing feeling that guilt has not been satisfactorily established; that there is a grave risk that an innocent person has been convicted; and that we should therefore not let this conviction stand.”
What bothered the judge on appeal?
- George had no history of conduct of the type alleged here.
- George was alleged to have exposed himself and was rubbing himself with his thumbs for a "few minutes" as he sat next to Victoria on a crowded morning rush hour subway train while, at the same time, he was talking to his friend and work supervisor who was seated perpendicular to complainant. That implausible scenario of events presented by Victoria with no other witness engenders a deep sense of unease in this case.
- Unlike the typical situation where crowded conditions on a subway car mask and facilitate sexual misconduct, the opposite is true in this case. The crowded condition on the subway car at issue makes it improbable that no one else saw the seated defendant — who, as complainant described, was chatting with his friend.
- There was no evidence that anyone other than complainant saw what purportedly occurred.
The dissenting judge was unhappy with the conviction and wrote that he would REVERSE.
But the conviction stands. George will keep his criminal record.
Was there enough evidence against George? Did it really happen? Only George and Victoria know the answer to that question for certain. But what happened to George, could happen to anyone.
Here is the case: http://www.courts.state.ny.us/reporter/3dseries/2020/2020_50836.htm