People v Nobles (Lennard)

[*1] People v Nobles (Lennard) 2017 NY Slip Op 51267(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
570383/13

The People of the State of New York, Respondent,

against

Lennard Nobles Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Anthony J. Ferrara, J.), rendered November 9, 2012, after a nonjury trial, convicting him of two counts of sexual abuse in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Anthony J. Ferrara, J.), rendered November 9, 2012, affirmed.

The verdict convicting the defendant of two counts of sexual abuse in the third degree (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 evidence, including the credited testimony of two plain-clothes police officers, established that defendant, who was initially observed walking up and down a Union Square uptown subway platform observing women's buttocks, followed a female on to an uptown express train and positioned himself directly behind her, and then repeatedly thrust his groin against the woman's buttocks in a grinding motion, until she moved away to another location. Defendant then exited the train at the 42nd Street Station, crossed the platform and followed a different female passenger on to an uptown local train. Defendant then positioned himself directly behind her and bent his knees until his pelvis was even with the victim's buttocks, and then thrust his groin against the victim. The victim frowned and turned towards defendant three times, but was unable to move away from defendant due to the position of defendant's arm on the crowded subway car. Upon exiting the train, defendant was observed standing on the platform, while his erect penis was visible through his pants. Based upon this evidence, the trial court could rationally infer that defendant engaged in "sexual contact" when he touched the victims' buttocks and that such touching was "for the purpose of gratifying [defendant's] sexual desire" (Penal Law § 130.00[3]; see People v Williams, 94 AD3d 1555 [2012]).

Contrary to defendant's assertions, the absence of a verbal protest by the victims does not compel a finding that they impliedly acquiesced in the sexual contact to which they were subjected by defendant (see People v White, 26 Misc 3d 129[A], 2010 NY Slip Op 50022[U] [App Term, 1st Dept 2010]; People v D'Alessio, 9 Misc 3d 64 [2005], lv denied 5 NY3d 851 [*2][2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 27, 2017