By: Higgitt, J.P., Brigantti, Hagler, JJ. 18-375. THE PEOPLE OF THE STATE OF NEW YORK, res, v. ALEXANDER ANTHINEZ, def-app — Judgment of conviction (Tamiko A. Amaker, J.), rendered March 16, 2017, affirmed. The verdict convicting the defendant of attempted forcible touching (see Penal Law §§110, 130.52[1]), sexual abuse in the third degree (see Penal Law §130.55), attempted assault in the third degree (see Penal Law §110, 120.00[1]) and harassment in the second degree (see Penal Law §240.26[1]) was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342 [2007]). There is no basis for disturbing the court’s credibility determinations, in which it credited the testimony of the victim and an eyewitness, and found defendant not to be credible. The evidence, including photographs of the victim’s injuries, established that defendant grabbed the victim’s buttocks, without consent, on a crowded subway train, and that when the victim attempted to photograph him with her cell phone, defendant struck her in the face, causing bleeding and a laceration to her lip, and a bruised cheek. Contrary to defendant’s contention, we find nothing incredible about the victim’s testimony and find no basis to disturb the credibility assessment of the trial court, who was able to hear the victim’s testimony and observe her demeanor (see People v. Nowinski, 36 AD3d 1082, 1084 [2007], lv denied 8 NY3d 989 [2007]). The inconsistency between the victim’s description of defendant’s conduct as a “touch” in her pretrial statement and her use of the word “grab” at trial, was explored on cross-examination, and was for the factfinder to resolve (see e.g. People v. Matthews, 159 AD2d 410 [1990], lv denied 76 NY2d 861 [1990]). All concur. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
By: Higgitt, J.P., Brigantti, Hagler, JJ. 19-411. THE PEOPLE OF THE STATE OF NEW YORK, res, v. MAXIME OUIKHLEF, def-app — Judgment of conviction (Richard A. Tsai, J.), rendered January 23, 2019, affirmed. Since defendant waived prosecution by information, the accusatory instrument only had to satisfy the reasonable cause requirement of a misdemeanor complaint (see People v. Dumay, 23 NY3d 518, 522 [2014]). So viewed, the accusatory instrument was jurisdictionally valid at least with respect to the charged offenses of making graffiti (see Penal Law §145.60[2]) and possession of graffiti instruments (see Penal Law §145.65). The instrument recited that, in front of 310 West Broadway, a police officer “observed the defendant affix a sticker depicting the word ‘Maxime’ [defendant's first name] on a New York City light pole,” that the officer “took a black marker from the defendant’s” pocket, as well as “three additional stickers depicting the word ‘Maxime’” from defendant’s pocket; that based on the officer’s training and experience, he determined that the recovered items “are of a type commonly used to make graffiti;” that the officer was a “custodian of the property;” and that defendant did not have permission or authority to “place any stickers on,” or otherwise “deface the property.” These allegations were sufficient for pleading purposes since they provided adequate notice to enable defendant to prepare a defense and invoke his protection against double jeopardy (see People v. Kasse, 22 NY3d 1142 [2014]). Since at least one of the charged misdemeanor offenses was jurisdictionally valid, the court had jurisdiction to accept defendant’s plea to the uncharged lesser offense of disorderly conduct (see People v. Keizer, 100 NY2d 114, 117-119 [2003]). All concur. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
