Opinion
2021-50957
10-08-2021
The People of the State of New York, Respondent, v. Nolan Julien, Appellant.
Appellate Advocates (Sam Feldman of counsel), for appellant. Kings County District Attorney (Leonard Joblove and Ruth E. Ross of counsel), for respondent.
Unpublished Opinion
Appellate Advocates (Sam Feldman of counsel), for appellant.
Kings County District Attorney (Leonard Joblove and Ruth E. Ross of counsel), for respondent.
PRESENT: WAVNY TOUSSAINT, J.P., MICHELLE WESTON, DAVID ELLIOT, JJ
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Jane C. Tully, J.), rendered January 25, 2018. The judgment convicted defendant, after a nonjury trial, of attempted forcible touching, sexual abuse in the third degree, attempted sexual abuse in the second degree, attempted aggravated harassment in the second degree, attempted endangering the welfare of a child and harassment in the second degree, and imposed sentence.
ORDERED that the judgment of conviction is modified, on the law, by vacating the conviction of attempted aggravated harassment in the second degree and dismissing the count of the accusatory instrument charging that offense; as so modified, the judgment of conviction is affirmed.
Following a nonjury trial, defendant was convicted of attempted forcible touching (Penal Law §§ 110.00, 130.52 [2]), sexual abuse in the third degree (Penal Law § 130.55), attempted sexual abuse in the second degree (Penal Law §§ 110.00, 130.60 [2]), attempted aggravated harassment in the second degree (Penal Law §§ 110.00, 240.30 [4]), attempted endangering the welfare of a child (Penal Law §§ 110.00, 260.10 [1]) and harassment in the second degree (Penal Law § 240.26 [1]).
Viewing the evidence in the light most favorable to the People (see People v Contes, 60 N.Y.2d 620, 621 [1983]), we find, contrary to defendant's contention, that the evidence was legally sufficient to establish defendant's guilt of attempted forcible touching (Penal Law §§ 110.00, 130.52 [2]), sexual abuse in the third degree (Penal Law § 130.55) and attempted sexual abuse in the second degree (Penal Law §§ 110.00, 130.60 [2]) beyond a reasonable doubt. Grabbing a child, who was less than 14 years old, holding her down on the floor while laying on top of her and biting her neck, leaving a purple mark, constituted "sexual contact" (Penal Law § 130.00 [3]) with an intimate part of the body (see People v Sene, 66 A.D.3d 427, 427 [2009]). Furthermore, the intent to gain sexual gratification was properly inferred from the nature of the act committed and the circumstances under which it occurred (see People v Ditta, 52 N.Y.2d 657, 660 [1981]; People v Rodriguez, 1 Misc.3d 8, 9 [App Term, 2d Dept, 2d & 11th Jud Dists 2003]).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 N.Y.3d 342 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Lane, 7 N.Y.3d 888, 890 [2006]; People v Mateo, 2 N.Y.3d 383, 410 [2004]; People v Bleakley, 69 N.Y.2d 490, 495 [1987]; People v Zephyrin, 52 A.D.3d 543 [2008]). Weight of the evidence review requires that the reviewing court determine if an acquittal would not have been unreasonable, and, if so, the court must weigh the conflicting testimony, review any rational inferences that may be drawn from the evidence, and evaluate the strength of such conclusions, to determine whether the trier of fact was justified in finding the defendant guilty beyond a reasonable doubt (see People v Danielson, 9 N.Y.3d at 348; People v Bleakley, 69 N.Y.2d at 495; People v Zephyrin, 52 A.D.3d at 543). The resolution of credibility issues is primarily a determination for the trier of fact, which should not be disturbed "unless the trier of fact has failed to give the evidence the weight it should be accorded" (People v Khanna, 14 Misc.3d 128 [A], 2006 NY Slip Op 52507[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2006]; see People v Romero, 7 N.Y.3d 633, 644-645 [2006]; People v Olsen, 22 N.Y.2d 230 [1968]). Contrary to defendant's contention, we are satisfied that so much of the verdict as found defendant guilty of attempted forcible touching, sexual abuse in the third degree, attempted sexual abuse in the second degree, attempted endangering the welfare of a child and harassment in the second degree was not against the weight of the evidence (see People v Romero, 7 N.Y.3d at 643-644; People v Bleakley, 69 N.Y.2d at 493).
With respect to the count charging defendant with attempted aggravated harassment in the second degree (Penal Law §§ 110.00, 240.30 [4]), the "culpable mental state is not an intent to cause physical injury; it is an intent 'to harass, annoy, threaten or alarm another person.' Thus, while 'physical injury' must be the consequence, it need not have been intended" (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, Penal Law § 240.30).
In People v Campbell (72 N.Y.2d 602 [1988]), the Court of Appeals reversed defendant's conviction of attempted assault in the second degree on the ground that such offense was a legal impossibility. The logic and rationale of Campbell control and dictate that the charge of attempted aggravated harassment in the second degree in violation of Penal Law § 240.30 (4) does not qualify as a cognizable offense "because this crime imposes strict liability for a result-causing [physical] injury-[and] culpability would be imposed even if the resulting injury was wholly unintended" (People v Miller, 87 N.Y.2d 211, 217 [1995] [internal quotation marks omitted]; see People v Campbell, 72 N.Y.2d at 605-606; Matter of V.L-W., 64 Misc.3d 1224 [A], 2019 NY Slip Op 51285[U] [Fam Ct, Nassau County 2019]; People v Plastik, 48 Misc.3d 406 [Crim Ct, NY County 2015]).
Defendant's remaining contentions are that he was entitled to a jury trial due to his immigration status (see People v Suazo, 29 N.Y.3d 1087 [2017]) and that he was denied the right to present a defense. However, defendant has made a specific request to this court that, in the event this court were inclined to reverse the judgment of conviction on these grounds and order a new trial rather than dismissing the prosecutor's information, this court should affirm the judgment of conviction. Even were we to accept defendant's contentions that so much of the judgment as convicted him of attempted forcible touching, sexual abuse in the third degree, attempted sexual abuse in the in the second degree, attempted endangering the welfare of a child and harassment in the second degree should be reversed on either of these two grounds, we find that his specific request for dismissal of the charges would not be an appropriate remedy. In view of the serious nature of these counts, a penological purpose would be served by remanding the matter for further proceedings (see People v Conceicao, 26 N.Y.3d 375, 385 n [2015]). Thus, in accordance with defendant's specific request, we affirm the portion of the judgment convicting defendant of attempted forcible touching, sexual abuse in the third degree, attempted sexual abuse in the second degree, attempted endangering the welfare of a child and harassment in the second degree, without reviewing defendant's remaining contentions (see e.g. People v Jeudy, 153 A.D.3d 1203 [2017]; People v Teron, 139 A.D.3d 450 [2016]; People v Hough, 176 A.D.2d 964 [1991]; People v Vaughn, 119 A.D.2d 779 [1986]; People v Vasquez, 63 Misc.3d 137 [A], 2019 NY Slip Op 50524[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v Mizrahi, 62 Misc.3d 139[A], 2019 NY Slip Op 50053[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
Accordingly, the judgment of conviction is modified by vacating the conviction of attempted aggravated harassment in the second degree and dismissing that count of the accusatory instrument.
TOUSSAINT, J.P., WESTON and ELLIOT, JJ., concur.