People v. King

Defendant maintains that not all of the crimes for which he stands convicted are based on legally sufficient evidence^[1] because he did not forcibly compel the victim to submit to any sexual contact and the evidence introduced at trial only confirmed that what contact he did have with the victim was incidental to a playful and consensual encounter not prompted by any desire for sexual gratification. Initially, we note that defendant failed to make a motion challenging the legal sufficiency of the evidence introduced at trial and, therefore, has not preserved this issue for appellate review (see People v Malcolm, 74 AD3d 1483 , 1484 n [2010]; People v Vargas, 72 AD3d 1114 , 1116 [2010], Iv denied 15 NY3d 758 [2010]; People v Arce, 70 AD3d 1196 , 1198 [2010]). Moreover, our review of the record leads us to conclude that the verdict convicting defendant of the crimes of sexual abuse in the first degree and second degree and forcible touching is not against the weight of the credible evidence introduced at trial (see People v Romero, 7 NY3d 633 , 643 [2006]; People v Bleakley, 69 NY2d 490 , 495 [1987]).

Defendant, as noted, claims that he did not use force in any contact he had with the victim while they were at the park. Sexual abuse in the first degree requires that it be proven that defendant subjected the victim to sexual contact by forcible compulsion (see Penal Law § 130.65 [l]).^[3] Forcible compulsion, as it pertains to this prosecution, is defined as the “use of physical force” for the purpose of having sexual contact with the victim (Penal Law § 130.00 [8]). In determining whether forcible compulsion was employed by defendant during his encounter with the victim, all of the surrounding circumstances regarding what transpired may be considered, including “the state of mind produced in the victim by the defendant’s conduct, considering . . . the age of the victim, the relative size and strength of the defendant and victim, and the nature” of their relationship (People v Maggio, 70 AD3d 1258 , 1258-1259 [2010], Iv denied 14 NY3d 889 [2010] [internal quotation marks and citations omitted]; see People v Scanlon, 52 AD3d 1035 , 1038 [2008], Iv denied 11 NY3d 741 [2008]). Here, the victim testified that defendant had been wrestling with him when defendant “tapped” the victim in his genitals and made him feel “weird.”

Defendant also denies that his contact with the victim was motivated by a desire for sexual gratification. Sexual gratification can be inferred from the nature of the contact, as well as other evidence which, upon admission, provides a fuller explanation as to why the questionable contact, in fact, occurred (see People v Elwood, 62 AD3d 1046 , 1047 [2009]; People v Stewart, 57 AD3d 1312 , 1315 [2008], Iv denied 12 NY3d 788 [2009], cert denied 558 US —, 130 S Ct 1047 [2010]; see also Matter of Lauryn H. [William A.], 73 AD3d 1175 , 1177 [2010]; Matter of Jonathan F., 72 AD3d 963 , 964 [2010]). Here, defendant’s roommate testified that, prior to the incident, defendant had told him that he was sexually attracted to the victim, who lived next door. Also, the victim recalled that, while at the park, defendant stated that he wanted to use a “penis pump” on him. These statements, along with the victim’s account of what transpired at the park, establish that defendant’s contact with the victim was prompted by a desire for sexual gratification (see People v Fuller, 50 AD3d 1171 , 1174-1175 [2008], Iv denied 11 NY3d 788 [2008] ; People v Beecher, 225 AD2d 943 , 944-945 [1996]).

Defendant also argues that the victim’s trial testimony was so inconsistent with other statements he made regarding this incident as to render it incredible as a matter of law. While inconsistencies in the child’s testimony undoubtedly exist, he steadfastly maintained throughout this investigation and subsequent prosecution that defendant forcibly subjected him to sexual contact while they were at the park. Moreover, none of the inconsistencies — all of which were fully developed at trial— was so significant as to warrant a wholesale rejection of the victim’s testimony or justify a finding that it was incredible as a matter of law (see People v Lopez-Aguilar, 64 AD3d 1037 , 1038 [2009] , Iv dismissed 13 NY3d 940 [2010]; People v Borthwick, 51 AD3d 1211 , 1214 [2008], Iv denied 11 NY3d 734 [2008]).