People v. Willis

• Decision Date: 30 December 2010
• Parties: The PEOPLE of the State of New York, Respondent, v. Randy WILLIS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 788
79 A.D.3d 1739

The PEOPLE of the State of New York, Respondent,
v.
Randy WILLIS, Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 30, 2010.

917 N.Y.S.2d 789

Wyoming County-Attica Legal Aid Bureau, Inc., Conflict Defenders, Warsaw (Anna Jost of Counsel), for Defendant-Appellant.

Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of Counsel), for Respondent.

PRESENT: MARTOCHE, J.P., SMITH, FAHEY, PERADOTTO, AND GREEN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25[2] ), failure to register as a sex

917 N.Y.S.2d 790

offender and/or to verify his status as such (Correction Law § 168-f[4] ), and forcible touching (Penal Law § 130.52). Defendant contends that the evidence is legally insufficient to support the forcible touching conviction inasmuch as the People failed to establish the victim's lack of consent. That contention is not preserved for our review inasmuch as defendant failed to raise that ground in his motion for a trial order of dismissal with respect to the forcible touching conviction ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919; People v. Jacobson, 60 A.D.3d 1326, 1327-1328, 876 N.Y.S.2d 259, lv. denied 12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078) and, in any event, that contention lacks merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Defendant further contends that the evidence is legally insufficient to support the forcible touching conviction because the People failed to establish that he acted "for the purpose of degrading or abusing" the victim "or for the purpose of gratifying [his] sexual desire" (§ 130.52). We reject that contention. "Because the question of whether a person was seeking sexual gratification is generally a subjective inquiry, it can be inferred from the conduct of the perpetrator" ( People v. Beecher, 225 A.D.2d 943, 944, 639 N.Y.S.2d 863). Here, it can be inferred that defendant grabbed the victim's breast for the purpose of sexual gratification from, inter alia, the fact that he placed his hands on his crotch prior to touching the victim and the fact that he touched the victim's buttocks on a prior occasion ( see generally People v. Fuller, 50 A.D.3d 1171, 1174-1175, 854 N.Y.S.2d 594, lv. denied 11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100; People v. Watson, 281 A.D.2d 691, 697, 721 N.Y.S.2d 700, lv. denied 96 N.Y.2d 925, 732 N.Y.S.2d 643, 758 N.E.2d...