PEOPLE v. COLON (2020)

Judgment of conviction (Abraham L. Clott, J.), rendered February 17, 2015, affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620 [1983]), and drawing all reasonable inferences in the People's favor (see People v. Gordon, 23 NY3d 643, 649 [2014]), we find that the evidence was legally sufficient to establish the defendant's guilt of attempted forcible touching (see Penal Law §§ 110.00, 130.52) and third-degree sexual abuse (see Penal Law § 130.55). The nontestifying victim's lack of consent to defendant's conduct was established by police testimony that the victim looked down and back at defendant with a look of “embarrassment” and “disgust” as he repeatedly pressed his groin against her buttocks on the crowded subway train, but was unable to move away from defendant due to the position of his arm (see Penal Law § 130.05[2][c] [lack of consent in sexual abuse or forcible touching prosecution results from “any circumstances ․ in which the victim does not expressly or impliedly acquiesce in the actor's conduct“] ). The “absence of a verbal protest by the victim does not compel a finding that she impliedly acquiesced in the sexual contact to which she was subjected by defendant” (People v. White, 26 Misc 3d 129[A], 2010 NY Slip Op 50022[U] [App Term, 1st Dept 2010]; see People v. Nobles, 57 Misc 3d 135[A], 2017 NY Slip Op 51267[U][App Term, 1st Dept 2017]).

Nor was the verdict against the weight of the evidence (see People v. Danielson, 9 NY3d 342 [2007]). There is no basis to disturb the court's determinations concerning credibility and identification. The credited testimony of the two plain clothes officers, who observed defendant in close proximity for approximately 30 minutes as he moved throughout the subway system and apprehended him about 20 minutes after losing sight of him at the crowded 86th Street station, established that he was the individual who committed the aforementioned acts.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.