By: Edmead, P.J., Cooper, Higgitt, JJ. 15-273. PEOPLE OF THE STATE OF NEW YORK, res, v. ANGEL COLON, def-app — Judgment of conviction (Abraham L. Clott, J.), rendered February 17, 2015, affirmed. Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620 [1983]), and drawing all reasonable inferences in the People’s favor (see People v. Gordon, 23 NY3d 643, 649 [2014]), we find that the evidence was legally sufficient to establish the defendant’s guilt of attempted forcible touching (see Penal Law §§110.00, 130.52) and third-degree sexual abuse (see Penal Law §130.55). The nontestifying victim’s lack of consent to defendant’s conduct was established by police testimony that the victim looked down and back at defendant with a look of “embarrassment” and “disgust” as he repeatedly pressed his groin against her buttocks on the crowded subway train, but was unable to move away from defendant due to the position of his arm (see Penal Law §130.05[2][c] [lack of consent in sexual abuse or forcible touching prosecution results from "any circumstances…in which the victim does not expressly or impliedly acquiesce in the actor's conduct"]). The “absence of a verbal protest by the victim does not compel a finding that she impliedly acquiesced in the sexual contact to which she was subjected by defendant” (People v. White, 26 Misc 3d 129[A], 2010 NY Slip Op 50022[U] [App Term, 1st Dept 2010]; see People v. Nobles, 57 Misc 3d 135[A], 2017 NY Slip Op 51267[U][App Term, 1st Dept 2017]). Nor was the verdict against the weight of the evidence (see People v. Danielson, 9 NY3d 342 [2007]). There is no basis to disturb the court’s determinations concerning credibility and identification. The credited testimony of the two plain clothes officers, who observed defendant in close proximity for approximately 30 minutes as he moved throughout the subway system and apprehended him about 20 minutes after losing sight of him at the crowded 86th Street station, established that he was the individual who committed the aforementioned acts. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
By: Edmead, P.J., Cooper, Higgitt, JJ. 19-179. THE PEOPLE OF THE STATE OF NEW YORK, res, v. NEFTALI THOMAS DIAZ, def-app — Judgment of conviction (Ann E. Scherzer, J., at suppression hearing and plea; Josh E. Hanshaft, J. at sentencing), rendered June 7, 2018, affirmed. Order (Judy H. Kim, J.), dated November 9, 2018, affirmed. The court properly denied defendant’s suppression motion. Defendant’s contention that the arresting officer’s testimony was incredible as a matter of law is unpreserved for appellate review since he did not raise this argument at the suppression hearing (see CPL 470.05[2]). We decline to review this claim in the interest of justice. As an alternative holding, the officer’s testimony that he observed defendant grind his groin into the buttocks of two woman on a crowded subway platform within a very short period of time was not incredible as a matter of law (see People v. Garafolo, 44 AD2d 86, 88 [1974]) and provided probable cause for his arrest for the crime of forcible touching (see People v. Guaman, 22 NY3d 678, 684 [2014]; People v. Levingston, 66 Misc 3d 148[A], 2020 NY Slip Op 50254[U] [App Term, 1st Dept 2020], lv denied 35 NY3d 971 [2020]) and the seizure of his clothing (see People v. Redda, 172 AD2d 419, 420 [1991]). Defendant’s contention that his guilty plea was not knowing, intelligent and voluntary because the plea court failed to inquire into his mental state at the time of the plea is unpreserved for our review, since he failed to raise the issue prior to sentencing (see CPL 440.10; People v. Lopez, 71 NY2d 662, 665-666 [1988]; People v. Buie, 128 AD3d 1281 [2015]). The narrow exception to the preservation rule is not applicable because nothing in the record cast significant doubt on the knowing or voluntary nature of defendant’s guilty plea (see People v. Diaz, 112 AD3d 423, 424 [2013], lv denied 23 NY3d 1036 [2014]). As an alternative holding, we reject defendant’s contention on the merits. The record establishes that defendant entered his plea knowingly, intelligently and voluntarily, and there was nothing in the record to suggest that defendant’s ability to make a valid plea was impaired in any way by any unspecified mental condition and defendant’s assertions in this regard rest on speculation (see People v. Rodriguez, 83 AD3d 449 [2011], lv denied 17 NY3d 800 [2011]). In any event, the only relief defendant requests is a dismissal of the accusatory instrument, and he expressly requests that this Court affirm his conviction if it does not grant a dismissal. Since dismissal is not warranted, we affirm on that basis as well (see People v. Conceicao, 26 NY3d 375, 385 n [2015]). The SORA court properly adjudicated defendant a level two sex offender. Defendant’s challenge to the 15-point assessment under Risk Factor 14 is unavailing, since the court’s sentence of a conditional discharge did not require the strict supervision prescribed in Risk Factor 14, i.e., supervision by a probation, parole or mental health professional (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]). The CIRT program that defendant completed prior to his sentencing was not a condition of the court’s sentence (see People v. Miller, 77 AD3d 1386, 1387 [2010], lv denied 16 NY3d 701 [2011]; People v. Lewis, 37 AD3d 689, 690 [2007], lv denied 8 NY3d 814 [2007]). Moreover, Risk Factor 14 relates to the offender’s “Release Environment” which involves an assessment of the offender’s prospective work and living arrangements, not prior behavior (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 6). The court providently exercised its discretion in declining to grant a downward departure from defendant’s presumptive risk level to level one (see People v. Gillotti, 23 NY3d 841 [2014]). Given defendant’s overall criminal record, including two forcible touching convictions (see People v. Callaghan, 56 AD3d 363 [2008], lv denied 12 NY3d 702 [2009]), his participation in the sex offender treatment program did not warrant such a departure (see People v. Guardiola, 143 AD3d 519 [2016], lv denied 28 NY3d 912 [2017]), nor do any of the other factors described by defendant, which were already taken into account in the risk assessment instrument and, as such, provide no basis for a downward departure (see People v. Diaz, 143 AD3d 552, 553 [2016]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
