Opinion
10-12-2022
The People of the State of New York, Respondent, v. Michael Cathlin, Defendant-Appellant.
Unpublished Opinion
PRESENT: Brigantti, J.P., Tisch, Michael, JJ.
PER CURIAM.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Josh E. Hanshaft, J.), rendered November 25, 2019, after a nonjury trial, convicting him of two counts of attempted forcible touching and one count of sexual abuse in the third degree, and imposing sentence.
Judgment of conviction (Josh E. Hanshaft, J.), rendered November 25, 2019, affirmed.
Defendant's present challenge to the legal sufficiency of the evidence supporting his conviction for attempted forcible touching (two counts) (see Penal Law §§ 110.00, 130.52[1],[2]), and third-degree sexual abuse (see Penal Law § 130.55), is unpreserved since defendant's dismissal motion "was not specifically directed at the alleged insufficiency that he now raises on appeal" (People v Danielson, 40 A.D.3d 174, 176 [2007], affd 9 N.Y.3d 342 [2007]), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. We also find that the verdict was not against the weight of the evidence (see People Danielson, 9 N.Y.3d at 348-349). There is no basis for disturbing the court's determinations concerning credibility in which it accepted the victim's account of the incident and rejected defendant's testimony. The court rationally found that defendant's conduct, placing his hand under the victim's dress and "rubb[ing] up" her thigh towards her vagina while seated next to her on a subway car, prompting her to stand up screaming, was intentional touching for the purpose of sexual gratification (see People v Lopez, 168 A.D.3d 418, 419 [2019], lv denied 33 N.Y.3d 1033 [2019]).
Defendant's claims of error in evidentiary rulings do not require reversal. The court properly admitted the victim's statements to a passenger, who testified at trial that she immediately went to console the victim, and a police officer, made within a few minutes after the incident, as excited utterances (see generally People v Johnson, 1 N.Y.3d 302 [2003]). Both statements were clearly precipitated by a startling event, the unwanted sexual contact, while the victim, described by both as "shaking," "crying" and "scared," was still visibly upset (see People v Brown, 177 A.D.3d 409 [2019] , lv denied 34 N.Y.3d 1126 [2020]; People v Johnson, 129 A.D.3d 486 [2015], lv denied 26 N.Y.3d 1089 [2015]). In any event, any error in the admission of the statements was harmless in light of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 N.Y.2d 230, 241-242 [1975]). Defendant's contention regarding the continued viability of the excited utterance exception to the hearsay rule is not preserved for appellate review (see People v Almonte, 33 N.Y.3d 1083, 1084 [2019]).
We reject, as did Criminal Court, defendant's contention that he was entitled to a jury trial under the Sixth Amendment to the U.S. Constitution. Defendant acknowledges that the three month maximum prison term he faced was not long enough to avoid the initial presumption that the charged class B misdemeanor offenses were petty under the law then in effect (see CPL 340.40[2] ; People v Urbaez, 10 N.Y.3d 773 [2008]), and he failed to "demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a 'serious' one" (People v Suazo, 32 N.Y.3d 491, 497 [2018]; quoting Blanton v City of North Las Vegas, Nev., 489 U.S. 538, 543 [1989]). The requirement to register under the Sex Offender Registration Act does not render an otherwise petty offense "serious" for purposes of the right to a trial by jury, as this requirement is not a penalty, but a remedial, collateral consequence of the conviction (see People v Gravino, 14 N.Y.3d 546, 556-558 [2010]; People v Wrighton, 82 A.D.3d 608 [2011], lv denied 17 N.Y.3d 810 [2011]). The other collateral consequences of the conviction, such as the potential loss of defendant's security guard license, do not "invariably flow" from a conviction so as to transform the underlying petty crimes into serious crimes for which a jury trial is required (People v Suazo, 32 N.Y.3d at 505-506, 506 n 7).
The New York State Legislature subsequently amended CPL 340.40(2), effective July 1, 2022, and extended the right to a jury trial to all misdemeanors.
Contrary to defendant's contention, the fact that prior to its amendment, CPL 340.20[2] authorized a jury trial for class B misdemeanors outside of New York City while mandating a "single judge trial" in the City for offenses carrying a maximum prison term "of not more than six months" did not amount to an equal protection violation (see Matter of Hogan v Rosenberg, 24 N.Y.2d 207, 216-218 [1969]["[t]he Supreme Court has recognized that territorial discrimination as between different States and even as between different parts of the same State is not of itself violative of the equal protection clause, even if the State has no reasonable basis for making such a distinction"], revd on other grounds sub nom. Baldwin v New York, 399 U.S. 66, 73-74 [1970]). The equal protection clause does not mandate absolute equality of treatment but merely prescribes that, absent a fundamental interest or suspect classification, a legislative classification be rationally related to a legitimate state purpose (see Marshall v United States, 414 U.S. 417, 422 [1974] ; People v Drayton, 39 N.Y.2d 580, 584-585 [1976]). "[T]he overburdening caseload existing in the criminal courts of the highly populated City of New York has given rise to extraordinary and unique circumstances which manifests the reasonable basis for making such a distinction" (Matter of Hogan, 24 N.Y.2d at 218; see People v Urbaez, 10 N.Y.3d at 773["[e]specially in New York City, with its high volume of misdemeanor cases, [CPL 340.20[2]] furthers the important public interest of effective judicial administration"]; People v Foy, 88 N.Y.2d 742, 744-745 [1996]; see generally People v Denning, 98 Misc.2d 369 [App Term, 1st Dept 1979]).
Nor has the State targeted either citizens or noncitizens for disparate treatment. Defendant was properly tried by a single judge like all other similarly situated defendants tried in a New York City criminal court on class B misdemeanors. Although Suazo held that "a noncitizen defendant charged with a deportable crime is entitled to a jury trial under the Sixth Amendment" (32 N.Y.3d at 508), it is the severity of the penalty, not the defendant's alienage, that accords him a jury trial. As the Court of Appeals made equally clear in Suazo, if defendant, like the noncitizen defendant facing deportation, can show that he faces sufficiently severe governmentally imposed consequences beyond the three month sentence if convicted on the class B misdemeanors he faced, he too would be accorded a jury trial.
We have considered defendant's remaining contentions and find them unavailing.
All concur.