PEOPLE v. CROSBY (2022)

Judgment of conviction (Ann E. Scherzer, J.), rendered November 8, 2017, affirmed.

The verdict 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 credited testimony of two plain-clothes police officers established that defendant followed a female onto a subway train, positioned himself directly behind her, and repeatedly thrust his groin back and forth against the woman's buttocks. After the victim moved, defendant followed her and again pressed his groin into her buttocks. We note that defendant does not seriously challenge either the weight or sufficiency of the evidence on appeal.

Defendant's claims of error in evidentiary rulings do not require reversal. The court properly admitted the nontestifying victim's statement to a police officer as an excited utterance (see generally People v Johnson, 1 NY3d 302 [2003]). The statement, made within a minute after the victim exited the subway car and was approached by police, clearly was precipitated by a startling event, the unwanted sexual contact, while the victim, described by police as looking angry with a “flushed red” face, was still visibly upset (see People v Brown, 177 AD3d 409 [2019], lv denied 34 NY3d 1126 [2020]; People v Johnson, 129 AD3d 486 [2015], lv denied 26 NY3d 1089 [2015]). Nor was the statement testimonial, since the circumstances objectively indicated that its primary purpose was to enable the authorities, who had observed the incident, to inquire of the victim's well-being and her possible need for further assistance. Nor was the statement elicited through structured police questioning (see Crawford v Washington, 541 US 36, 53 n 4 [2004]; see also New York v Quarles, 467 US 649, 658—659 [1984]; People v Diaz, 21 AD3d 58, 66—67 [2005], appeal dismissed 7 NY3d 831 [2006]).

In any event, any error in the admission of the statement was harmless in light of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 NY2d 230 [1975]).

Per Curiam.

All concur