New York Supreme and/or Appellate Courts Appellate Term, First Department
July 15, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Defendant appeals from (1) a judgment of the Criminal Court of the City of New York, New York County (Neil E. Ross, J.), rendered June 17, 2008, after a jury trial, convicting him of forcible touching and endangering the welfare of a child, and imposing sentence, and (2) an order (same court and Judge), dated July 21, 2008, which adjudicated him a level-two sex offender under the Sex Offender Registration Act (Correction Law Art. 6-C).
People v Jackson (Darnel)
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on July 15, 2011
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
Judgment of conviction (Neil E. Ross, J.), rendered June 17, 2008, and order (Neil E. Ross, J.), dated July 21, 2008, affirmed.
The defendant's challenge to the legal sufficiency of the evidence in support of his conviction of forcible touching and endangering the welfare of a child, is not preserved for appellate review (see CPL 470.05; People v Hawkins, 11 NY3d 484, 492 ; People v Gray, 86 NY2d 10, 19 ), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determination concerning credibility, and based on the weight of the credited trial testimony provided by the fourteen-year old complainant, the jury was justified in finding defendant guilty of both charges beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 348 ); see People v Pardew, 20 Misc 3d 129[A], 2008 NY Slip Op 51383[U] , lv denied 11 NY3d 792 ).
Contrary to defendant's contentions, the lack of consent of the infant complainant was established by evidence that she could not say anything because she was "shocked and scared," remained unresponsive to defendant's advances, "looked away" and moved away from him (see Penal Law § 130.05[c]; People v D'Alessio, 9 Misc 3d 64, 65 , lv denied 5 NY3d 851 ). "The absence of a verbal protest by the victim does not compel a finding that she impliedly acquiesced in the sexual contact to which she was subjected by defendant" (People v White, 26 Misc 3d 129[A], 2010 NY Slip Op 50022[U] ; see People v Pardew, 20 Misc 3d at 129[A]).
With respect to the order appealed from, Criminal Court properly designated the defendant as a level-two sex offender under SORA (see People v Maiello, 32 AD3d 463 ), since he failed to demonstrate special circumstances warranting a downward departure from the presumptive level assigned to him under the risk assessment instrument (see People v Hansford, 67 AD3d 496 ; People v Guaman, 8 AD3d 545 ).
Defendant's present contention that the court erred in assessing 15 points for a history of drug or alcohol abuse, is improperly raised for the first time on appeal, and we decline to reach it (see People v Cassano, 34 AD3d 239 , lv denied 8 NY3d 804 ). In any event, were we to reach this contention, deducting those points from the total points assessed against defendant would not alter his presumptive risk level (see People v Howell, 82 AD3d 857, 858 , lv denied ___NY2d___, 2011 NY Slip Op 72237 ; People v Mabee, 69 AD3d 820 , lv denied 15 NY3d 703 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 15, 2011
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