PEOPLE v. BARKAT (2022)

Judgment of conviction (Curtis Farber, J.), rendered April 25, 2018, affirmed.

The verdict convicting the defendant of two counts of attempted forcible touching (see Penal Law §§ 110.00, 130.52[1],[2]) and 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, 348-349 [2007]). There is no basis for disturbing the court's credibility determinations, including its resolution of alleged inconsistencies in testimony. The victim's testimony, as corroborated by a plainclothes police officer who witnessed the incident, established that defendant positioned himself directly behind the victim on a subway train and repeatedly pressed his groin against the victim's buttocks in a “circular” and “gyrating motion.” When the victim attempted to step away from defendant, he repositioned himself so that he could continue the described conduct. The court could rationally infer that defendant's conduct was intentional touching for the purpose of sexual gratification (see People v Cardona, 261 AD2d 202 [1999], lv denied 93 NY2d 967 [1999]), and was not accidental or inadvertent contact resulting from the crowded conditions of the subway car (see People v Lopez, 168 AD3d 418, 419 [2019], lv denied 33 NY3d 1033 [2019]).

Defendant's contention that he was constitutionally entitled to a jury trial on class B misdemeanors rendering him deportable (see People v Suazo, 32 NY3d 491 [2018]), is unpreserved, since defendant did not request a jury trial or object to a bench trial (see People v Bartley, 163 AD3d 435, 436 [2018], lv denied 32 NY3d 1063 [2018]; People v De Leon Garcia, 74 Misc 3d 129[A], 2022 NY Slip Op 50130[U][App Term 1st Dept 2022], lv denied 38 NY3d 1032 [2022]), and we decline to review it in the interest of justice. “Moreover, quite apart from the lack of preservation, there is nothing on this record to afford a basis for determination of the question now raised for the first time” (People v Johnson, 51 NY2d 986, 987 [1980]). As an alternative holding, to the extent the existing record permits review, we find that defendant did not meet his burden of establishing deportability based on the charges he faced (People v Garcia, 33 NY3d 1137 [2022]). In any event, the issue is moot, because on December 3, 2018, defendant was granted a cancellation of removal by an immigration Judge.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur