People v Noe (Aharon)

[*1] People v Noe (Aharon) 2015 NY Slip Op 50295(U) Decided on March 9, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570910/13

The People of the State of New York, Respondent,

against

Aharon Noe, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James M. Burke, J.), rendered May 30, 2013, after a nonjury trial, convicting him of sexual abuse in the third degree and attempted forcible touching, and imposing sentence.

Per Curiam.

Judgment of conviction (James M. Burke, J.), rendered May 30, 2013, affirmed.

As defendant concedes, his present challenge to the legal sufficiency of the evidence supporting his conviction of third-degree sexual abuse (Penal Law § 130.55) and attempted forcible touching (Penal Law §§ 110.00/130.52) is unpreserved inasmuch as he failed to renew his motion for a trial order of dismissal at the close of all of the evidence (see People v Lane, 7 NY3d 888, 889 [2006]). As an alternative holding, we find that the verdict was based on legally sufficient evidence, including the victim's credited testimony showing that defendant, without consent, twice touched and applied "sustained" pressure to her vaginal area over her dress (see People v Guaman, 22 NY3d 678, 684 [2014]). Moreover, upon our independent review of the facts, we are satisfied that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348—349 [2007]).

The court properly exercised its discretion in admitting rebuttal testimony that tended to refute defendant's version of events (see People v Harris, 57 NY2d 335, 345 [1982], cert denied 460 US 1047 [1983). Even if some of the testimony was "not technically of a rebuttal nature," the court had discretion to allow it (CPL 260.30[7]; see (People v Dennis, 55 AD3d 385, 386 [2008], lv denied 12 NY3d 783 [2009]), and defendant was not unduly prejudiced.

To the extent that defendant attempts to raise a violation of his speedy trial rights as a basis for direct appeal, he waived that argument by failing to make a motion to dismiss on speedy trial grounds prior to trial (see CPL 170.45, 210.45; People v Garcia, 33 AD3d 1050 [2006], lv denied 9 NY3d 844 [2007]). Insofar as defendant raised the speedy trial issue in his unsuccessful CPL 440.10 motion based upon ineffective assistance, the issue is unreviewable since defendant failed to obtain permission from this court to appeal (see People v Villegas, 298 AD2d 122 [2002], lv denied 99 NY2d 565 [2002]). To the extent that the existing record permits review, it does not support a finding that defendant was denied meaningful representation (see e.g. People v Baker, 14 NY3d 266, 270 [2010).

We are unpersuaded that the 15-day sentence imposed was unduly harsh or severe, where defendant could have received a jail sentence of as much as three months. Given the illicit touching shown to have occurred and defendant's prior criminal history, we find no extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v Fair, 33 AD3d 558, 558 [2006], lv denied 8 NY3d 945 [2007]; People v Sturdevant, 74 AD3d 1491, 1495, lv denied 15 NY3d 810 [2010]).

Defendant's challenge to the facial sufficiency of the accusatory instrument is lacking in merit (see People v Guaman, 22 NY3d at 684).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: March 09, 2015