PEOPLE v. OSORIO (2021)

Judgment of conviction (Curtis Farber, J.), rendered October 26, 2017, affirmed.

The verdict convicting defendant of attempted forcible touching (two counts) (see Penal Law §§ 110.00, 130.52) and 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, including its resolution of alleged inconsistencies in testimony. The trial court could rationally infer from the evidence that defendant engaged in “sexual contact,” as defined in Penal Law § 130.00[3]), when he repeatedly thrust his groin into the victim's buttocks on the crowded subway train, while his erect penis was visible through his pants. The element of intent to obtain sexual gratification can be readily inferred, under all the circumstances, from defendant's conduct itself (see Matter of Traekwon I., 152 AD3d 431 [2017]; Matter of Xheenan N., 273 AD2d 50 [2000]).

The court properly exercised its discretion in denying defendant's request for a missing witness charge with respect to the victim's friend who was present during the incident. There is no indication that the witness was under the People's control for purposes of a missing witness charge (see People v Gonzalez, 68 NY2d 424, 428-429 [1986]; People v Broadhead, 36 AD3d 423, 424 [2007], lv denied 8 NY3d 919 [2007]; People v McLean, 17 AD3d 1150, 1150-1151 [2005], lv denied 5 NY3d 791 [2005]). Moreover, the witness did not possess relevant and material information since the victim testified that her friend was “not near” her on the “crowded” subway car, was “unaware of what was going on” and did not say “anything” to the police but only asked “what happened?” Furthermore, her testimony would have been cumulative of the other evidence. In any event, any error in failing to give a missing witness charge was harmless in the context of this nonjury trial and given the overwhelming evidence of guilt (see People v Hall, 18 NY3d 122 [2011]; People v McFarlane, 189 AD2d 785 [1993]).

Per Curiam.

All concur.