PEOPLE v. BROWN (2019)

Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered May 3, 2017, convicting defendant, after a jury trial, of sexual abuse in the third degree, and sentencing him to one year of probation, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]). There is no basis for disturbing the jury's determinations concerning credibility and identification. Although none of the witnesses actually saw defendant touch the victim's buttocks, the inference is inescapable that defendant did so. Contrary to defendant's assertion, this was not the victim's “surmise.” Immediately after feeling such contact, she turned around and saw defendant, the only person in a position to have touched her. He was standing directly behind her and continuing to press into her, and he then held his crotch and asked the victim to touch it. Moreover, other persons in the store where this occurred corroborated the victim's testimony.

The court providently exercised its discretion in admitting the victim's statement to a police officer as an excited utterance (see generally People v. Hernandez, 28 N.Y.3d 1056, 1057, 43 N.Y.S.3d 237, 65 N.E.3d 1272 [2016]). It is undisputed that the victim experienced a startling event (the unwanted sexual contact) and that the statement was made just a few minutes later, while the victim was still visibly upset. The victim personally observed the facts underlying her accusation of defendant (see People v. Cummings, 31 N.Y.3d 204, 209–210, 75 N.Y.S.3d 484, 99 N.E.3d 877 [2018]), and defendant's argument that she did not personally observe him touch her is unavailing for the reasons stated above. We likewise reject defendant's argument that the victim's excited state was not attributable to the sexual abuse but rather to an intervening fight in the store involving defendant and others. The sexual abuse and ensuing fight constituted one continuous event, and the fight did not at any rate create an opportunity for studied reflection so as to call the veracity of the victim's statement into question (see generally Hernandez, 28 N.Y.3d at 1057, 43 N.Y.S.3d 237, 65 N.E.3d 1272). Moreover, any error was harmless (see People v. Ludwig, 24 N.Y.3d 221, 230, 997 N.Y.S.2d 351, 21 N.E.3d 1012 [2014]).