Opinion
570074/18
07-01-2021
The PEOPLE of the State of New York, Respondent, v. Kirk WATSON, Defendant-Appellant.
Per Curiam.
Judgment of conviction (Steven M. Statsinger, J.), rendered August 29, 2017, affirmed.
The prosecutor's information charging attempted forcible touching ( see Penal Law §§ 110, 130.52[1],[2] ) and sexual abuse in the third degree ( see Penal Law § 130.55 ) was jurisdictionally valid because the factual allegations in the original information establish every element of the offenses and defendant's commission thereof ( see People v Inserra , 4 NY3d 30 [2004] ). The original information alleges that defendant followed a female passenger into a subway train car, "push[ed] his groin up against" her buttocks and "repeatedly rub[bed] against her," even though there was enough room behind defendant such that he did not have to press up against the victim, and that defendant repeated this conduct after the victim moved away. Based upon these allegations, it can be reasonably inferred that defendant touched the victim for the purpose of degrading or abusing her and to gratify his sexual desires ( see People v Hatton , 26 NY3d 364 [2015] ; People v Guaman , 22 NY3d 678 [2014] ; People v Bookard , 167 AD3d 424 [2018], lv denied 32 NY3d 1169 [2019] ).
The verdict was based on 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 determinations concerning credibility in which it credited the testimony of the two plainclothes police officers who witnessed the incident and rejected defendant's testimony ( see People v Ramos , 166 AD3d 442 [2018], lv denied 32 NY3d 1177 [2019] ). Any minor inconsistencies in testimony were properly considered by the court ( see People v Romero , 7 NY3d 633 [2006] ).
Defendant's contention that he was deprived of his constitutional rights to confrontation and due process when the court limited his cross-examination of a police witness about a prior civil lawsuit against him alleging excessive force is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. Defendant received ample scope in which to impeach the officer's credibility, and defendant failed to demonstrate how the prior allegations of excessive force were relevant to the officer's credibility ( see People v Brown , 181 AD3d 701 [2020], lv denied 35 NY3d 1064 [2020] ). In any event, any constitutional or nonconstitutional error was harmless in view of the overwhelming evidence of guilt ( see People v Crimmins , 36 NY2d 230 [1975] ).
The court's summary denial of defendant's application for new counsel was appropriate. Defendant made the application on the day the case was proceeding to trial and in the context of a meritless application for an adjournment to hire an investigator. Defendant expressed only a vague, generalized complaint about retained counsel's strategy, a complaint which did not constitute good cause ( see People v Hampton , 168 AD3d 559, 560 [2019], lv denied 33 NY3d 949 [2019] ) and did not require further inquiry under all the circumstances ( see People v Stokes , 149 AD3d 510 [2017], lv denied 29 NY3d 1087 [2017] ).
Defendant's contention that the court violated his constitutional right to confrontation by denying his request for an adjournment to interview witnesses is unpreserved for appellate review ( see People v Carmona, 185 AD3d 600, 603 [2020] ) and we decline to review it in the interest of justice. Were we to review this claim, we would reject it. The court properly exercised its discretion when it denied this request because eight months had elapsed since defendant's arraignment and the court "was not required, as a matter of law, to grant defendant an adjournment to try to put together a more persuasive case" ( People v Diggins , 11 NY3d 518, 525 [2008] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
All concur