Opinion
No. 2010–2955KCR.
2013-06-14
The PEOPLE of the State of New York, Respondent, v. Noha SHEHABELDIN, Appellant.
Present: RIOS, J.P., WESTON and ALIOTTA, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John H. Wilson, J.), rendered September 30, 2010. The judgment convicted defendant, after a nonjury trial, of two counts of harassment in the second degree.
ORDERED that the judgment of conviction is modified, on the law, by vacating defendant's conviction of harassment in the second degree with respect to Tewan Lowe, vacating the sentence imposed thereon, and dismissing the count of the accusatory instrument charging that offense; as so modified, the judgment of conviction is affirmed.
The accusatory instrument charging defendant with, among other offenses, two counts of harassment in the second degree (Penal Law § 240.26[1] ) alleges, in part, that, in the course of a verbal altercation with Tewan Lowe, a New York City Transit Authority bus driver, defendant, a passenger who was apparently irate that the bus was late, stated that she “should shoot” the driver and that she “should come back and shoot” him. A second count of harassment in the second degree was based on defendant's violent encounter with Officer O'Neill, one of the two police officers who had been summoned to investigate the bus driver's report of defendant's threats. Certain of the remaining charges were dismissed and, after a nonjury trial, defendant was convicted of the two counts of harassment in the second degree and acquitted of the remaining charges.
On appeal, defendant contends that the accusatory instrument was facially insufficient to allege the offenses, that the trial proof was legally insufficient to support the convictions, and that the convictions were, in any event, against the weight of the evidence.
We agree that the conviction of harassment in the second degree with respect to Tewan Lowe should be vacated and the count of the accusatory instrument alleging that offense dismissed for facial insufficiency. The factual allegations in the accusatory instrument, standing alone, could not reasonably be construed to represent a genuine and immediate threat to the driver, and there were no additional words or acts accompanying the statements that might render them subject to a penal sanction (People v. Dietze, 75 N.Y.2d 47, 53–54 [1989] ).
As for the conviction of harassment in the second degree with respect to Officer O'Neill, the accusatory instrument alleged that defendant's violent reaction to the police officer's attempt to investigate the incident with the bus driver, which included defendant's flailing of her arms and swinging punches towards the officer, caused Officer O'Neill to sustain a laceration to her finger and scratches to her arm. Such allegations, if true, establish “every element of the offense charged and the defendant's commission thereof” (CPL 100.40[1][c] ) with respect to Officer O'Neill. Further, the trial proof, viewed in the light most favorable to the People (People v. Contes, 60 N.Y.2d 620, 621 [1983] ), was legally sufficient to prove the offense ( e.g. People v. Griffen, 31 Misc.3d 130[A], 2011 N.Y. Slip Op 50574[U] [App Term, 9th & 10th Jud Dists 2011] [defendant's hostile conduct, a blow to the face and “vigorous resistance to arrest,” held to be sufficient] ). Defendant's intent may be inferred from the act itself and from defendant's conduct in the context of the attendant circumstances (People v. Rodriguez, 17 NY3d 486, 489 [2011];People v. Bracey, 41 N.Y.2d 296, 301 [1977];People v. Williams, 38 Misc.3d 4, 9 [App Term, 2d, 11th & 13th Jud Dists 2012] ). In the exercise of our factual review power (CPL 470.15[5] ), we find that the verdict with respect to the count involving Officer O'Neill was not against the weight of the evidence.
Accordingly, the judgment of conviction is modified by vacating defendant's conviction of harassment in the second degree with respect to Tewan Lowe, vacating the sentence imposed thereon, and dismissing the count of the accusatory instrument charging that offense; as so modified, the judgment of conviction is affirmed.