As to the act of chest massage performed by the Applicant on one of the complainants, it was determined that it was doubtful, in the context of this act, whether the Applicant was given a proper opportunity to deal with the charge of an act of assault.
- I am of the opinion, even at the time of writing this opinion, that what is stated in the judgment in the appeal, regarding the fact that the offense of assault, in the circumstances of the present case, is an offense that is "swallowed up" in the offense of rape by fraud, is correct and well-founded. The offense of assault is defined in section 378 of the Penal Law as follows:
"Anyone who strikes, touches, pushes, or otherwise exerts force on a person's body, directly or indirectly, without his consent or consent obtained by fraud - this is an assault..." (Emphasis added - 10:20).
As stated, the Applicant's conviction for the offense of rape by fraud was based on the determination that the Applicant had touched the complainants in various ways, while their consent to contact was obtained fraudulently, while he was aware of it. Therefore, I am of the opinion that all the elements of the offense of assault - both the factual element and the mental element - are fulfilled in our case.
As to the applicant's right to plead with respect to his conviction for this offense, the case law of this court held that when the defendant was given an opportunity to defend himself against a serious offense, the foundations of which coincide with a lesser offense that is swallowed up in it, it can be seen as an implied defense against the accusation of a lesser offense (see, for example, the Anonymous, pp. 116-117). Accordingly, my opinion is that the applicant was given the full opportunity, as part of his defense against the charge of fraudulent rape, to defend himself against the possibility of his conviction for the offense of assault, which is based on those acts themselves.
In addition, my opinion is that the applicant's wrongful actions establish a significant public interest in convicting him of the offense of assault, while using the authority granted to the court Section 216 to the Criminal Procedure Law, which prevails over the applicant's arguments regarding the passage of time since the acts were committed and the legal torture inflicted on him.