People v Levons (Barnady)

[*1] People v Levons (Barnady) 2009 NY Slip Op 51324(U) [24 Misc 3d 129(A)] Decided on June 30, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 30, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, Shulman, JJ
570224/09.

The People of the State of New York, Respondent,

against

Barnady Levons, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal

Court of the City of New York, New York County (Herbert J. Adlerberg, J.H.O.) rendered January 31, 2008, after a nonjury trial, convicting him of sexual abuse in the third degree, and imposing sentence.
Per Curiam.

Judgment of conviction (Herbert J. Adlerberg, J.H.O.), rendered January 31, 2008, affirmed.

Defendant's motion for a trial order of dismissal was insufficiently specific to preserve his present challenge to the legal sufficiency of the evidence supporting his conviction of third-degree sexual abuse (see People v Hawkins, 11 NY3d 484, 492 [2008]), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The lack of consent element of the charged crime was established by evidence, inter alia, that the sexual contact depicted in the record occurred after defendant grabbed and "pinned" the complainant's right arm and despite the complainant's attempts to pull away (see Penal Law § 130.05[2][c][lack of consent in sexual abuse prosecution results from "any circumstances ... in which the victim does not expressly or impliedly acquiesce in the actor's conduct"]). Nor was the verdict against the weight of the evidence. There is no basis for disturbing the court's credibility determinations.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 30, 2009