A man was cleared of carrying out a solo sex act on a New York train after he claimed he had merely been adjusting his "big" penis.

A woman sitting opposite Kosta Kolaci, 61, filmed the incident which she claimed was evidence of him inappropriately touching himself.

But a judge tossed out the case when the defendant’s attorney claimed the woman was over-reacting to him adjusting himself after a long day at work.

He said just because his client’s penis "happens to be big" does not mean he was breaking the law.

The New York Daily News reports Mr Kolaci was finally cleared.

He was acquitted of touching himself in a sexual manner on a morning N-train after his defence argued the well-endowed defendant was merely adjusting his prodigious package through his pants, the paper reports.

He was charged with public lewdness and harassment, but cleared after a brief Brooklyn Criminal Court bench trial.

The 61-year-old defendant testified that he was returning early from his construction job and had no recollection of the supposed April 9 incident.

Passenger Alethia Richardson, 32, contacted police after making a video recording which she claimed showed Kolaci engaged in a solo sex act.

Police said she even turned the camera on herself at one point, saying: "Disrespect. Nasty. Pervert."

Prosecutors agreed Mr Kolaci was performing the act, but the court was told at no point did he ever unzip or expose himself.

Defence attorney Cary London successfully argued his client was merely making his large penis a little more comfortable on the train.

And he even went on to say the accuser was somewhat guilty of paying too much attention to Kolaci’s crotch.

“The fact that Mr Kolaci may have a big penis that this woman was enamoured with from sitting across from him does not make him guilty of a crime,” Mr London said in his closing argument.

“This is someone minding his own business who happens to have a penis.”

He also said there were many other empty seats she could have moved away to.

“She wanted to make a situation out of something that wasn’t,” he said.

Ms Richardson reported to officers than she boarded a train at the 59th Street station in Sunset Park and a man was seated across from her “grabbing and rubbing his crotch area”.

A police report from the time states she “observed that the man’s penis was erect and appeared to be almost protruding from his pants”.

It goes on to claim she was “extremely upset” and reported it to a transit precinct after getting off the train in Coney Island, where Kolaci also exited.

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