Opinion
No. 570617/17
04-17-2023
The People of the State of New York, Respondent, v. Chavarr Gilliam, Defendant-Appellant.
Unpublished Opinion
PRESENT: Brigantti, J.P., Tisch, James, JJ.
PER CURIAM.
Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Bahaati E. Pitt, J.), rendered September 6, 2017, after a nonjury trial, convicting him of attempted forcible touching and harassment in the second degree, and imposing sentence.
Judgment of conviction (Bahaati E. Pitt, J.), rendered September 6, 2017, affirmed.
The verdict convicting the defendant of attempted forcible touching (see Penal Law §§ 110.00, 130.52) and harassment in the second degree (see Penal Law § 240.26[1]) 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 credibility determinations. The evidence, including credited testimony of the victim and surveillance video of the incident, established that defendant, an inmate at Riker's Island, smacked the buttocks of the victim without consent, while the latter was working in her capacity as a corrections officer at the facility. The Court could rationally infer from his actions that defendant's intention was either for his sexual gratification or for the purpose of degrading or humiliating the victim (see People v Wagner, 72 A.D.3d 1196, 1197 [2010], lv denied 15 N.Y.3d 779 [2010]), and to harass, annoy or alarm her (see Penal Law § 240.26; People v Mack, 76 A.D.3d 467, 468 [2010], lv denied 15 N.Y.3d 922 [2010]).
Contrary to defendant's contention, we find nothing incredible or "embellished" about the victim's testimony and find no basis to disturb the credibility assessment of the trial court, who was able to hear the victim's testimony and observe her demeanor (see People v Nowinski, 36 A.D.3d 1082, 1084 [2007], lv denied 8 N.Y.3d 989 [2007]). Any inconsistency between the victim's description of defendant's conduct as a "touch" in her pretrial statement and her use of the words "slap" or "smack" at trial, was explored on cross-examination, and was for the factfinder to resolve (see People v Romero, 7 N.Y.3d 633 [2006]).
Defendant's remaining arguments are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find that the single act ascribed to defendant constituted second-degree harassment pursuant to Penal Law § 240.26(1).