Opinion
2021-50614
07-01-2021
The People of the State of New York, Respondent, v. Kirk Watson, Defendant-Appellant.
Unpublished Opinion
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Steven M. Statsinger, J.), rendered August 29, 2017, after a nonjury trial, convicting him of two counts of attempted forcible touching and one count of sexual abuse in the third degree, and imposing sentence.
PRESENT: McShan, J.P., Brigantti, Hagler, JJ.
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 N.Y.3d 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 N.Y.3d 364 [2015]; People v Guaman, 22 N.Y.3d 678 [2014]; People v Bookard, 167 A.D.3d 424 [2018], lv denied 32 N.Y.3d 1169 [2019]).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 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 A.D.3d 442 [2018], lv denied 32 N.Y.3d 1177 [2019]). Any minor inconsistencies in testimony were properly considered by the court (see People v Romero, 7 N.Y.3d 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 A.D.3d 701 [2020], lv denied 35 N.Y.3d 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 N.Y.2d 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 A.D.3d 559, 560 [2019], lv denied 33 N.Y.3d 949 [2019]) and did not require further inquiry under all the circumstances (se e People v Stokes, 149 A.D.3d 510 [2017], lv denied 29 N.Y.3d 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 A.D.3d 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 N.Y.3d 518, 525 [2008]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.