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THE PEOPLE, res, v. GARY ROSS, def-app

14-140. THE PEOPLE, res, v. GARY ROSS, def-app — Judgment of conviction (Robert M. Mandelbaum, J.), rendered March 20, 2013, affirmed.

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14-140. THE PEOPLE, res, v. GARY ROSS, def-app — Judgment of conviction (Robert M. Mandelbaum, J.), rendered March 20, 2013, affirmed.

The verdict convicting defendant of third degree sexual abuse (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 NY3d 342 [2007]). There is no basis for disturbing the court’s determination concerning credibility. The victims testimony, which was credited by the court, established that defendant — who was lying on a stretcher and receiving hospital discharge instructions — raised his upper body off the stretcher, extended his left arm and grabbed the victim’s right breast. The court could rationally infer that defendant’s conduct was for the purpose of sexual gratification, as defined by Penal Law §130.00(3), and was not inadvertent (see People v. Wagner, 72 AD3d 1196, 1197 [2010], lv denied 15 NY3d 779 [2010]; People v. Sumpter, 190 Misc 2d 115 [2001], lv denied 97 NY2d 762 [2002]).

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