Opinion
2012-2118 D CR
02-17-2015
The People of the State of New York, Respondent, v. Henri Martin, Appellant.
PRESENT: : , MARANO and TOLBERT, JJ.
Appeal from two judgments of the Justice Court of the Village of Red Hook, Dutchess County (Jonah Triebwasser, J.), rendered July 18, 2012. The judgments convicted defendant, after a nonjury trial, of harassment in the second degree and failing to comply with a lawful order or direction of a police officer regulating traffic, respectively.
ORDERED that the judgment of conviction of harassment in the second degree is reversed, on the facts, and the accusatory instrument charging that offense is dismissed; and it is further,
ORDERED that the judgment convicting defendant of failing to comply with a lawful order or direction of a police officer regulating traffic is affirmed.
Defendant, a 69-year-old man with various health problems, fell inside a supermarket in which he was shopping, and, minutes later, in the supermarket's parking lot. He adamantly refused any medical attention from paramedics who were called to the scene. Defendant entered his vehicle, seeking to leave the supermarket parking lot. When a police officer arrived and asked defendant to give him his car keys so that he could be evaluated by the paramedics, defendant again refused. He made a profane threat to the officer to get out of the way, or else the officer would be sorry. Defendant then backed up his vehicle with the driver's door open, striking the officer with the door at a speed of four or five miles per hour. The officer stumbled, but did not fall and was not injured. The officer pursued defendant in his police vehicle. Defendant drove home. He was subsequently arrested and, insofar as is relevant to this appeal, was charged in separate accusatory instruments with harassment in the second degree (Penal Law § 240.26 [1]) and failing to comply with a lawful order or direction of a police officer regulating traffic (Vehicle and Traffic Law § 1102), respectively. Following a nonjury trial, defendant was convicted of these charges.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficienSt to support the convictions of harassment in the second degree and failing to comply with a lawful order or direction of a police officer regulating traffic.
However, we find that the conviction of harassment in the second degree was against the weight of the evidence. In exercising our factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we must weigh "the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]), and determine whether an acquittal would not have been unreasonable based upon the evidence presented, and whether the finder of fact failed to accord the evidence the weight it should have been accorded ( id.; see People v Danielson, 9 NY3d at 348; People v Zephyrin, 52 AD3d 543 [2008]).
In the case at bar, we find that an acquittal of the charge of harassment in the second degree would not have been unreasonable, and that the Justice Court did not properly accord weight to certain evidence. Here, both defendant and the officer testified that defendant's intent was not to harass, annoy, or alarm the officer (see Penal Law § 240.26), but merely to get out of the parking lot and go home. Under the circumstances, we reverse defendant's conviction of harassment in the second degree (compare People v Torres, 41 Misc 3d 134[A], 2013 NY Slip Op 51877[U] [App Term, 9th & 10th Jud Dists 2013]).
Defendant's conviction of failing to comply with a lawful order or direction of a police officer regulating traffic was not against the weight of the evidence (see People v Welch, 20 Misc 3d 133[A], 2008 NY Slip Op 51463[U] [App Term, 9th & 10th Jud Dists 2008]; People v Holness, 34 Misc 3d 1226[A], 2011 NY Slip Op 52493[U] [New Rochelle City Ct 2011]), as the officer's order to defendant sought to prevent a potential accident, and involved regulating the control or movement of traffic.
Defendant's contention that his conviction of failing to comply with a lawful order or direction of a police officer regulating traffic should be reversed on the ground that the evidence at trial varied from the People's theory as presented in the accusatory instrument is unpreserved for appellate review (see CPL 470.05 [2]; People v Haimovici, 30 Misc 3d 139[A], 2011 NY Slip Op 50230[U] [App Term, 9th & 10th Jud Dists 2011]). In any event, defendant's contention is without merit. The theory of, and the evidence adduced on, the People's case were not at variance with the allegations of the accusatory instrument and the supporting depositions. Consequently, defendant had "fair notice of what the People would attempt to prove" at trial (People v Grega, 72 NY2d 489, 496 [1988]; see People v Zurita, 64 AD3d 800, 801 [2009]; People v Haimovici, 30 Misc 3d 139[A], 2011 NY Slip Op 50230[U]; People v Dimuzio, 7 Misc 3d 134[A], 2005 NY Slip Op 50722[U] [App Term, 9th & 10th Jud Dists 2005]).
Accordingly, the judgment convicting defendant of harassment in the second degree is reversed and the accusatory instrument charging that offense is dismissed. The judgment convicting defendant of failing to comply with a lawful order or direction of a police officer regulating traffic is affirmed.
Iannacci, J.P., Marano and Tolbert, JJ., concur.
Decision Date: February 17, 2015