People v Colon (Eladio)

[*1] People v Colon (Eladio) 2017 NY Slip Op 51266(U) Decided on September 27, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Ling-Cohan, Gonzalez, JJ.
570269/14

The People of the State of New York,

against

Eladio Colon, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Diana M. Boyar, J.), rendered February 14, 2014, after a nonjury trial, convicting him of sexual abuse in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Diana M. Boyar, J.), rendered February 14, 2014, affirmed.

The verdict convicting defendant of third degree sexual abuse (see Penal Law § 130.55) was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]). There is no basis for disturbing the court's determination concerning credibility. The credited testimony established that, after a subway conductor initially witnessed defendant engage in a pattern of bizarre and provocative acts on a subway car, including stroking his bare chest while observing his reflection and swaying his hips in front of seated women, defendant stared at the female victim, who had just boarded the train, followed her further into the car, positioned himself right behind her, extended his hand close to her backside and brushed the victim's buttocks with the back of his hand. The court could rationally infer that defendant's conduct was for the purpose of sexual gratification, as defined by Penal Law § 130.00(3), and was not inadvertent (see People Cardona, 261 AD2d 202 [1999], lv denied 93 NY2d 967 [1999]; People v Ross, 53 Misc 3d 143[A], 2016 Slip Op 51552[U] [App Term, 1st Dept 2016], lv denied 28 NY3d 1188 [2017]).

Inasmuch as defendant's commission of the charged offense was adequately pleaded in the original complaint and supporting deposition, his jurisdictional challenge to the subsequently filed prosecutor's information is lacking in merit (see People v Inserra, 4 NY3d 30 [2004]). In this regard, the sexual contact and sexual gratification elements (see Penal Law 130.00[3]) were satisfied by allegations that defendant "approach[ed] a woman and touch[ed] her buttocks with his knuckles" (see People v Teicher, 52 NY2d 638, 646-647 [1981]; Matter of Daniel R. (Lucille R.), 70 AD3d 839, 841 [2010]). The lack of consent element (see Penal Law § 130.52) was satisfied by allegations that the victim "move[d] away from the defendant and sat down on a seat in the train car" after the touching (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 [*2]impliedly acquiesce in the actor's conduct"]; People v Logan, 54 Misc 3d 146[A], 2017 NY Slip Op 50301[U][App Term, 1st Dept 2017], lv denied 29 NY3d 1034 [2017]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: September 27, 2017