Opinion
570410/18
02-28-2022
The People of the State of New York, Respondent, v. Simon De Leon Garcia (Simon), Defendant-Appellant.
Unpublished Opinion
PRESENT: Edmead, P.J., Brigantti, Silvera, JJ.
PER CURIAM.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Lyle E. Frank, J.), rendered March 16, 2018, after a nonjury trial, convicting him of sexual abuse in the third degree, and imposing sentence.
Judgment of conviction (Lyle E. Frank, J.), rendered March 16, 2018, affirmed.
The verdict convicting defendant of sexual abuse in the third degree (see Penal Law § 130.55) was supported by 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 determination concerning credibility and identification, including its evaluation of the strengths and weaknesses of the testimony of the two identifying witnesses. The credited testimony of the victim, as corroborated by a plain-clothes police officer, established that defendant - who was initially observed standing on a subway platform while several trains passed by - followed the female victim onto a crowded train and positioned himself "very close behind" her before pressing his groin area repeatedly into her buttocks. Contrary to defendant's contention, the reliable identifications by the victim - who "got a very good look peripherally" at defendant - and the officer, who observed defendant in close proximity with an "unobstructed" view throughout the incident, established that he was the individual who committed the aforementioned acts (see People v Horsford, 68 A.D.3d 556, 557 [2009], lv denied 14 N.Y.3d 801 [2010]).
Defendant's claim that he was entitled to a jury trial pursuant to People v Suazo (32 N.Y.3d 491 [2018]) is unpreserved, since defendant did not request a jury trial or object to a bench trial (see People v Bartley, 163 A.D.3d 435, 436 [2018], lv denied 32 N.Y.3d 1063 [2018]; see generally People v Delorbe, 35 N.Y.3d 112, 119 [2020]), and we decline to review it in the interest of justice. "Moreover, quite apart from the lack of preservation, there is nothing on this record to afford a basis for determination of the question now raised for the first time" (People v Johnson, 51 N.Y.2d 986, 987 [1980]).
All concur.