PEOPLE v. RONDON (2020)

Judgment of conviction (Ann E. Scherzer, J.), rendered March 21, 2016, affirmed.

Defendant's legal sufficiency claim is unpreserved (see CPL 470.05[2]; People v. Hawkins, 11 NY3d 484, 492 [2008]), and we decline to review it in the interest of justice. As 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 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court's credibility determinations, in which it credited the testimony of the victim and two plainclothes police officers who witnessed the incident. Regarding the charge of sexual abuse in the third degree (see Penal Law § 130.55), the element of sexual contact for the purpose of sexual gratification could be inferred from defendant's conduct in following the victim onto a subway train, positioning himself directly behind her, repeatedly pressing and rubbing his erect penis against her buttocks and, when the victim attempted to move away, repositioning himself so that he could continue the described contact while pinning her in place (see People v. Wagner, 72 AD3d 1196, 1197 [2010], lv denied15 NY3d 779 [2010]; People v. Kader, 62 Misc 3d 143[A], 2019 NY Slip Op 50110[U][App Term, 1st Dept 2019], lv denied 33 NY3d 950 [2019]). Regarding the attempted forcible touching charge (see Penal Law §§ 110.00, 130.52), it could be inferred from the evidence that defendant intended to abuse or degrade the victim by his conduct, and that there was no legitimate purpose for his acts (see Matter of Traekwon I., 152 AD3d 431, 432 [2017]; see also People v. Hatton, 26 NY3d 364, 370-371 [2015]).

Per Curiam.