In her concurrence, Manzanet-Daniels said Hernandez's purported misunderstanding of sexual contact "defies common sense and the record evidence."
The claim that Hernandez believed mere physical contact equaled punishable sexual contact was "palpably ridiculous," she said, adding, "If this were the case, just shaking a woman's hand, without her consent, would consign the offender to a state prison sentence."
Manzanet-Daniels rebutted the dissent's conclusion that Hernandez had been motivated by anger, not sexual desire.
"One motivated solely by anger generally does not 'grab [someone] between her pants and her blouse' in order to eject her from the premises," she said.
In any case, she added that Hernandez was not prejudiced by the outcome because he was already eligible for deportation after his assault conviction.
Manhattan Assistant District Attorney Hope Korenstein represented the prosecution. The office declined to comment.
Hernandez was represented in his motion to set aside the conviction and appeal by Bonnie Brennan of the Legal Aid Society.
"We're disappointed with the result and strongly agree with the reasoning and result of the dissent," said Lawrence Hausman, a supervising attorney in Legal Aid's criminal appeals bureau.
Hausman said the office would seek leave to appeal from the Court of Appeals, adding that the case presented "important legal issues about ascertaining whether an individual is prejudiced by a lawyer's ineffectiveness in this context."
Hernandez, now 42, was turned over to U.S. Immigration and Customs Enforcement in March. Hausman said a favorable ruling in the Court of Appeals could avert his deportation.
Schioppi did not respond to a request for comment.
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