PEOPLE v. LANTIGUA (2026)

Judgment, Supreme Court, New York County (James M. Burke, J.), rendered November 14, 2018, convicting defendant, following a jury trial, of unlawful surveillance in the second degree, and imposing a fine of $5,000, unanimously affirmed.

The evidence that defendant acted “surreptitiously” was legally sufficient and supported by the weight of the evidence because defendant took steps to conceal the fact that he was taking an illicit photo from the complainant and from others in the crowded subway station (see People v. Schreier, 22 NY3d 494, 498 [2014];  People v. Danielson, 9 NY3d 342, 348–349 [2007];  see also People v. Baque, 43 NY3d 26 [2024] ).  The “under the clothing” element of the offense was also supported by sufficient evidence and was not against the weight of the evidence notwithstanding that the complainant's lower buttocks were visible as she rode on an ascending escalator.

Defendant's claim of prosecutorial misconduct is also unavailing because he cannot establish an “obdurate pattern of improper behavior” (People v. Campos, 235 AD3d 597, 598 [1st Dept 2025], lv denied 104 NY3d 1054 [2025] ).  In any event, any errant remarks by the prosecutor were harmless in light of the overwhelming evidence of guilt (see People v. Crimmins, 36 N.Y.2d 230 [1975] ).

The court did not abuse its discretion in limiting impeachment of the testifying officer, who had been the subject of two disciplinary investigations, to the extent of excluding alleged but unsubstantiated homophobic remarks he made in one of the instances (see People v. Smith, 27 NY3d 652, 663 [2016] ).  The cross-examination the court did allow evidence undermining the officer's credibility and the court's determination that introducing the alleged homophobic remarks might be distracting to the jury and inflammatory should not be disturbed.  In any event, any error would have been harmless (see Crimmins, 36 N.Y.2d 230;  People v. Rodney, 131 AD3d 424, 424 [1st Dept 2025], lv denied 26 NY3d 1042 [2015].

We perceive no basis for reducing the fine imposed on defendant.