Rubbing up against a teenager in a crowded subway and ejaculating on her back may be “reprehensible,” but it does not constitute first-degree sexual assault, a Manhattan appellate panel has ruled.

“While the conduct described in the grand jury presentation was reprehensible, the evidence was legally insufficient to establish the use of physical force” as required by New York’s Penal Law, a divided Appellate Division, 1st Department, panel ruled in People v. Mack, 5730/08. “Instead, it established the use of stealth to commit the crime.”

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