PEOPLE v. JOHNSON (2022)

Judgment, Supreme Court, New York County (Melissa C. Jackson, J. at dismissal/severance motion;  Daniel P. FitzGerald, J. at jury trial and sentencing), rendered February 8, 2016, as amended February 10, 2016, convicting defendant of petit larceny, sexual abuse in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him to an aggregate term of 11/212 years, unanimously affirmed.

Defendant's legal sufficiency claim regarding his sexual abuse conviction is unpreserved and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.  We also find that the verdict 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]).  The evidence established that the victim did not consent to having her buttocks touched by defendant.  There is no basis for disturbing the jury's credibility determinations.  The victim's testimony, along with video surveillance evidence, established that defendant followed the intoxicated victim into her apartment building and initiated an unwanted encounter with her that included hugging her and touching her backside without her consent, before stealing her property.

The drug possession count was properly joined with the other counts in the indictment, because there was overlapping evidence that tended to prove both the drug charge and the charges relating to the original incident (see CPL 200.20[2][b]).  Evidence of the original incident was relevant to explain how defendant came to be arrested for the drug charge, and evidence of defendant's flight from the police was relevant to all the charges (see People v. Johnson, 48 N.Y.2d 925, 926, 425 N.Y.S.2d 55, 401 N.E.2d 178 [1979];  People v. Khan, 174 A.D.2d 510, 510, 571 N.Y.S.2d 288 [1st Dept. 1991], lv denied 78 N.Y.2d 968, 574 N.Y.S.2d 948, 580 N.E.2d 420 [1991]).