Cite as: The People v. Mariano Hernandez, 570655/10, NYLJ 1202578368532, at *1 (App. Tm., 1st, 12th JD, Decided August 29, 2012)

Before: Schoenfeld, J.P., Torres, Hunter, Jr., JJ.

Decided: August 29, 2012




Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James M. Burke, J.), rendered June 25, 2010, after a jury trial, convicting him of sexual abuse in the third degree and forcible touching, and imposing sentence.


Judgment of conviction (James M. Burke, J.), rendered June 25, 2010, affirmed.

Defendant's challenge to legal sufficiency of the evidence supporting his conviction of third-degree sexual abuse is unpreserved for appellate review, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The evidence, including the victim's credited testimony that, while she




was walking up a flight of subway stairs, defendant reached under her skirt from behind and "grabbed" and "pinched" her vaginal area, warrants the conclusion that defendant's conduct was for the purpose of sexual gratification. There was no "innocent explanation" for the unwanted sexual touching (see Matter of Stephen F., 300 AD2d 52, 53 [2002]) and, contrary to defendant's apparent contention, the fleeting nature of the incident does not serve to negate a finding of sexual gratification otherwise firmly established at trial.

The court's supplemental instructions meaningfully responded to the jury notes and correctly defined the elements of forcible touching (see Penal Law §130.52; People v. Bartlett, 89 AD3d 1453, 1454 [2011], lv denied 18 NY3d 881 [2012]; People v. Pardew, 20 Misc 3d 129[A], 2008 NY Slip Op 51383[U] [App Term, 1st Dept 2008], lv denied 11 NY3d 792 [2008]).