PEOPLE v. URBANO (2022)

Judgment of conviction (Kate Paek, J. at plea; Heidi C. Cesare, J. at sentencing), rendered March 28, 2016, affirmed.

In view of defendant's knowing waiver of his right to prosecution by information, the accusatory instrument only had to satisfy the reasonable cause requirement (see People v Dumay, 23 NY3d 518 [2014]). So viewed, the accusatory instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of forcible touching (see Penal Law § 130.52). The instrument recited that defendant “push[ed] his groin up against” the victim's buttocks on a subway train and “repeatedly rub[bed] against her”; that he “alternate[d] between rubbing the groin area of [his] pants in a circular motion and touching the [victim's] buttocks” with his hand; that the victim “turn[ed] around several times to look at” defendant; and that the parties did not engage in any conversation before the victim “depart[ed] the train without the defendant.” These allegations were sufficient to support the inference that the victim did not acquiesce to defendant's actions (see Penal Law § 130.05[2][c][lack of consent results from “any circumstances ․ in which the victim does not expressly or impliedly acquiesce in the actor's conduct”]; People v Hatton, 26 NY3d 364, 370 [2015]; People v Roebuck, 65 Misc 3d 148[A], 2019 NY Slip Op 51819[U] [App Term, 1st Dept 2019], lv denied 34 NY3d 1132 [2020]; People v Nobles, 57 Misc 3d 135[A], 2017 NY Slip Op 51267[U][App Term, 1st Dept 2017]; People v White, 26 Misc 3d 129[A], 2010 NY Slip Op 50022[U][App Term, 1st Dept 2010][“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”]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur