People v. Gonzalez (Alejandro)

76 Misc. 3d 130(A), 2022 NY Slip Op 50880(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: September 19, 2022
• Docket: 571191/18
• Status: Unpublished

Opinion

People v Gonzalez (2022 NY Slip Op 50880(U)) [*1]

People v Gonzalez (Alejandro)

2022 NY Slip Op 50880(U) [76 Misc 3d 130(A)]

Decided on September 19, 2022

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 19, 2022

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Brigantti, J.P., Tisch, Michael, JJ.
571191/18

The People of the State of New York, Respondent,

against

Alejandro Gonzalez, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Judy H. Kim, J.), rendered October 26, 2018, convicting him, upon a plea of guilty, of forcible touching, and imposing sentence.

Per Curiam.

Judgment of conviction (Judy H. Kim, J.), rendered October 26, 2018, affirmed.

Since defendant waived his right to prosecution by information, the facial sufficiency of the accusatory instrument must be assessed under the standard required of a misdemeanor complaint (see People v Dumay, 23 NY3d 518, 522 [2014]). So viewed, the accusatory instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of forcible touching (see Penal Law § 130.52), the offense to which defendant ultimately pleaded guilty. The instrument recited, inter alia, that at a specified subway station, complainant "observed the defendant place his hand on" and "grab" her breast and that he "continue[d] to touch her" even after she told defendant to "stop touching her."

Contrary to defendant's contention, complainant's identification of defendant as the perpetrator was based upon her personal observation of defendant and was nonconclusory. Any further challenge to the identification of defendant was a matter to be raised at trial, not by insistence that the instrument was jurisdictionally defective (see People v Konieczny, 2 NY3d 569, 577 [2004]; People v Roldan, 71 Misc 3d 135[A], 2021 NY Slip Op 50426[U][App Term, 1st Dept 2021], lv denied 37 NY3d 995 [2021]).

All concur

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Clerk of the Court
Decision Date: September 19, 2022