[*1]
People v Villatoro (Aquilino)
2014 NY Slip Op 51157(U) [44 Misc 3d 133(A)]
Decided on July 24, 2014
Appellate Term, Second Department
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This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., MARANO and TOLBERT, JJ.
2012-715 S CR

The People of the State of New York, Respondent,

against

Aquilino Villatoro, Appellant.


Appeal from judgments of the District Court of Suffolk County, First District (Patricia M. Filiberto, J.), rendered February 22, 2012. The judgments convicted defendant, upon jury verdicts, of forcible touching and endangering the welfare of a child, respectively.

ORDERED that the judgments of conviction are affirmed.

On July 15, 2011, the People charged defendant, in separate informations, with forcible touching (Penal Law § 130.52), criminal obstruction of breathing or blood circulation (Penal Law § 121.11 [b]), endangering the welfare of a child (Penal Law § 260.10 [1]), and attempted grand larceny in the fourth degree (Penal Law §§ 110.00, 155.30 [5]), respectively. On August 23, 2011, the People charged defendant, in a separate information, with a second charge of forcible touching. The testimony at a jury trial established that, on July 24, 2011, at about 8:57 p.m., defendant approached from behind a 35-year-old female who was walking on College Road in Selden, New York and pushing a stroller wherein lay her seven-month-old son. Defendant grabbed her right breast and the right side of her buttocks, and in the course of the ensuing struggle, seized her cell phone when she attempted to use it to summon assistance, covered her mouth when she began to cry out for help, and caused the stroller to tip over. There was also testimony that, following defendant's arrest, he provided a statement in which he admitted to certain of the acts of criminal conduct for which he was later charged. The trial evidence included the testimony of the victim, two eyewitnesses to the attack, and four of the police officers who had participated in the investigation of the incident, defendant's arrest, and the taking of defendant's statement. After a jury trial, defendant was convicted of endangering the welfare of a child and one charge of forcible touching, and acquitted of the remaining charges.

On appeal, defendant argues that the victim's testimony was so marred by internal inconsistencies, contradictions with other testimony, and obvious falsehoods as to render that testimony unworthy of belief as a matter of law, and that the trial proof was legally insufficient to establish either his intent to commit a forcible touching or that there existed a risk of child endangerment of which defendant was aware. In any event, defendant concludes, the verdicts were against the weight of the evidence.

Insofar as defendant's evidentiary insufficiency claim is based on the argument that the victim's testimony was unworthy of belief as a matter of law, the issue is not preserved for appellate review (CPL 470.05 [2]; People v Carlucci, 80 AD3d 621, 622 [2011]; People v Crawford, 38 AD3d 680, 681 [2007]; People v Florio, 40 Misc 3d 132[A], 2013 NY Slip Op 51137[U] [App Term, 9th & 10th Jud Dists 2013]). In any event, the victim's testimony was not incredible as a matter of law. "Incredibility as a matter of law may result [w]hen all of the evidence of guilt comes from a single prosecution witness who gives irreconcilable testimony pointing both to guilt and innocence, because in that event the jury is left without basis, other than impermissible speculation, for its determination of either" (People v Calabria, 3 NY3d 80, 82 [2004] [internal quotation marks and citation omitted]; see also People v Foster, 64 NY2d [*2]1144, 1147 [1985] [conviction reversed where the testimony of a critical witness "involved hopeless contradictions"]). Here, two eyewitnesses to the victim's ordeal described the incident, which testimony was generally consistent with both the victim's own account and defendant's admissions in his post-arrest statement. The purported instances of contradiction or implausibility cited by defendant did not render the victim's testimony "equivocal or hopelessly contradictory" (People v Williams, 16 AD3d 980, 981 [2005]), or so "manifestly untrue, physically impossible, [or] contrary to experience" as to render it unworthy of belief (People v Coles, 62 AD3d 1022, 1022 [2009] [internal quotation marks omitted]). Although her testimony "differed in some respects from that of other witnesses . . ., resolution of such inconsistencies [wa]s for the jury" (People v Hampton, 21 NY3d 277, 288 [2013]; see also People v Jackson, 65 NY2d 265, 272 [1985]; People v Green, 107 AD3d 915, 915 [2013]).

Viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 [1983]), we find that the trial evidence established that defendant, a stranger to the victim, approached her from behind, obstructed her ability to depart by seizing the stroller containing her infant son, and, without any indication of her actual or tacit consent to the conduct, forcibly grabbed her breast and buttocks (see Penal Law § 130.05 [1], [2] [a], [c]). This proof is legally sufficient to establish conduct which, if committed for purposes of sexual gratification, constituted forcible touching. Whether a person commits acts for sexual gratification "is generally a subjective inquiry" and may "be inferred from the conduct of the perpetrator" (People v Beecher, 225 AD2d 943, 944 [1996]; see also Matter of Narvanda S., 109 AD3d 710, 712 [2013]; People v Fuller, 50 AD3d 1171, 1175 [2008]). Defendant had no prior relationship with the victim, and his physical contact with her, aside from covering her mouth, was entirely sexual in nature.

We also find the proof legally sufficient to support the conviction of endangering the welfare of a child (Penal Law § 260.10 [1]). In People v Johnson (95 NY2d 368, 371 [2000] [internal quotation marks and citation omitted]), the Court of Appeals noted that "[a]ctual harm to the child need not result for criminal liability [to attach]; it is sufficient that the defendant act in a manner which is likely to result in harm to the child, [while] knowing of the likelihood of such harm coming to the child." Further, Penal Law § 260.10 "does not require that the conduct be specifically directed at a child; rather, a defendant must simply be aware that the conduct may likely result in harm to a child" (id. at 372). "[T]he crime is solely defined by the risk of injury produced by defendant's conduct" (id. [emphasis added]; see also Penal Law § 15.05 [2]; People v Hitchcock, 98 NY2d 586, 591 [2002]).

It cannot be doubted that defendant was aware that the stroller contained a child, and the victim testified that defendant placed a hand on the stroller to prevent the victim from walking away and that the stroller was tipped in the course of defendant's physical attack on her. Were the tipping of a stroller in which a seven-month-old infant is sleeping insufficient to create a likelihood of harm to the infant, the testimony also supports a finding that the victim, although impeded in this effort by defendant, righted the stroller, whereupon she and the stroller were propelled onto the street as a consequence of defendant's physical behavior and of her attempts to resist defendant and to escape from him. Another witness testified that, at one point, the stroller was within range of oncoming traffic and had to be removed from the road to avoid that danger.

Finally, in fulfilling our responsibility independently to review the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), and giving "great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor" (People v Bleakley, 69 NY2d 490, 495 [1987]; see also People v Lane, 7 NY3d 888, 890 [2006] ["those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record"]), we are satisfied that the verdicts were not against the weight of the evidence.

Accordingly, the judgments of conviction are affirmed.

Iannacci, J.P., Marano and Tolbert, JJ., concur.


Decision Date: July 24, 2014