Opinion
2008-199 W CR.
Decided June 29, 2009.
Appeal from a judgment of the City Court of Mount Vernon, Westchester County (Brenda Dowery-Rodriguez, J.), rendered January 3, 2008. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree.
Judgment of conviction reversed, on the facts, and accusatory instrument dismissed.
PRESENT: RUDOLPH, P.J., TANENBAUM and NICOLAI, JJ.
Defendant was charged with harassment in the second degree (Penal Law § 240.26) as the result of a confrontation with the complainant that occurred at the complainant's printing production facility. To the extent that the trial court determined that the testimony of the prosecution witnesses was credible, we give great deference to that determination ( see People v Lane, 7 NY3d 888, 890). We nevertheless find, under the particular circumstances here, that the verdict of guilt was against the weight of the evidence on the issue of whether defendant made genuine threats, which would fall within the ambit of Penal Law § 240.26 (1), as opposed to mere "crude outburst[s]" ( People v Dietze, 75 NY2d 47, 54) or "express[ions of] . . . anger . . . in terms of apparent bravado" ( People v Todaro, 26 NY2d 325, 330), which are not covered by the statute ( see Dietze at 53-54; Todaro at 330).
While a conviction under Penal Law § 240.26 will be affirmed if the evidence establishes a violation of any one of the subdivisions of the statute ( see Todaro at 330; People v Carcel, 3 NY2d 327; see also People v Combs, 38 NY2d 868), the evidence, in our view, did not establish a violation of either of the two remaining subdivisions of Penal Law § 240.26. Subdivision 2 of Penal Law § 240.26 requires conduct by the defendant in a "public place," and subdivision (3) requires "repeatedly commit[ted] acts" or a "course of conduct" by the defendant. None of these elements was proven here ( see People v Wood, 59 NY2d 811; People v Chasserot, 30 NY2d 898; Sawdy-Dacey v Dacey, 236 AD2d 896; cf. People v Tralli, 88 Misc 2d 117 [App Term, 9th 10th Jud Dists 1976]).
Accordingly, the judgment of conviction is reversed and the accusatory instrument dismissed. In light of our decision, we do not reach defendant's remaining arguments.
Rudolph, P.J., Tanenbaum and Nicolai, JJ., concur.