[*1]Decided on July 10, 2008

PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (John Cataldo, J.), rendered March 2, 2006, after a nonjury trial, convicting him of sexual abuse in the third degree and forcible touching, and imposing sentence.

PER CURIAM.

Judgment of conviction (John Cataldo, J.), rendered March 2, 2006, affirmed.

We reject defendant's challenge to the sufficiency and weight of the evidence supporting the lack of consent element of the charged crimes. The complainant's clear and consistent testimony, together with defendant's post-incident recorded statements, established beyond a reasonable doubt that the complainant did not "expressly or impliedly acquiesce" (Penal Law § 130.05[2][c]) in the sexual contact to which she was subjected immediately after she awakened. Defendant's present argument that the evidence was legally insufficient to establish that the illicit touching shown to have occurred was "forcible" within the meaning of Penal Law § 130.52 is unpreserved for appellate review (see CPL 470.05[2]; People v Gray, 86 NY2d 10 [1995]), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The defendant's conduct in reaching under the complainant's clothing, moving his hands "all over," and "fondling" her breasts, nipples and vagina was sufficient to trigger the provisions of the statute. We find unavailing the defendant's strained contention that his touching of the somnolent complainant was somehow less "forcible" than the "squeezing, grabbing or pinching" listed by way of example as proscribed acts under the statute. We have considered defendant's remaining point and find it lacking in merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: July 10, 2008