Appellate Term, First Department: November 14, 2019

By: Shulman, P.J., Edmead, JJ. 14-351. THE PEOPLE OF THE STATE OF NEW YORK, res, v. ARDAE MCGRAW, def-app — Order (Diana M. Boyar, J.), dated January 10, 2014, affirmed. The record supports the level three sex offender adjudication. The SORA court properly assessed 15 points for defendant’s history of drug or alcohol abuse, based upon defendant’s own admissions, including his statement to probation officials that he had used marijuana on a daily basis, as well as his criminal history (see People v. Smalls, 164 AD3d 1185, 1186 [2018], lv denied 32 NY3d 914 [2019]; People v. Van Phu Bui, 156 AD3d 448 [2017], lv denied 31 NY3d 903 [2018]; People v. Zewge, 142 AD3d 880, 881 [2016]).  THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

By: Shulman, P.J., Edmead, JJ. 14-468. THE PEOPLE OF THE STATE OF NEW YORK, res, v. LOVORIO RODRIGUEZ A/K/A MIGUEL ADRADE, def-app — Judgments of conviction (Erika M. Edwards, J.), rendered November 6, 2013, affirmed. As part of a global resolution of two separate criminal prosecutions arising from allegations that defendant, without consent, rubbed his erect penis against the buttocks of several female subway passengers, defendant pleaded guilty to three counts of forcible touching (see Penal Law §130.52) and three counts of sexual abuse in the third degree (see Penal Law §130.55), in exchange for concurrent six-month terms of imprisonment on each count. On appeal, defendant alleges that the forcible touching and sexual abuse charges under docket number 2013NY047524 were jurisdictionally defective in failing to allege the lack of consent element. However, the only relief defendant requests is dismissal of both accusatory instruments, and he expressly requests that we affirm the convictions if we do not grant a dismissal. Because we do not find dismissal would be appropriate, we affirm on this basis (see e.g. People v. Teron, 139 AD3d 450 [2016]). In any event, we find the jurisdictional claim unavailing. At the pleading stage, the victim’s lack of consent can be inferred from the circumstances leading up to and during the subway incident (see Penal Law §130.05[2][c]; People v. Hatton, 26 NY3d 364, 370 [2015]; see generally People v. Lopez, 168 AD3d 418 [2019], lv denied 33 NY3d 1033 [2019]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.