People v White (Gerry)

[*1] People v White (Gerry) 2010 NY Slip Op 50022(U) [26 Misc 3d 129(A)] Decided on January 11, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 11, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, JJ
570315/09.

The People of the State of New York,

against

Gerry White, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Rita M. Mella, J.), rendered December 8, 2008, after a nonjury trial, convicting him of sexual abuse in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Rita M. Mella, J.), rendered December 8, 2008, affirmed.

Defendant's conviction of third-degree sexual abuse
was supported by legally sufficient evidence and was not against the weight of the evidence. There is no basis to disturb the trial court's credibility determinations. The lack of consent element was satisfied by the credited
police account that the nontestifying victim was unable
to move away from the defendant on the crowded subway car between station stops and alighted from the subway car at the first available opportunity (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"]). The absence of a verbal protest by the victim does not compel a finding that she impliedly acquiesced in the sexual contact to which she was subjected by defendant (see People v D'Alessio, 9 Misc 3d 64 [2005], lv denied 5 NY3d 851 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 11, 2010