Opinion
No. 2020-1000 RO CR
05-19-2022
The People of the State of New York, Respondent, v. Yessenia Vasquez, Appellant.
Ellen O'Hara Woods, for appellant. Rockland County District Attorney (Carrie A. Ciganek and Ranada Lewis of counsel), for respondent.
Unpublished Opinion
Ellen O'Hara Woods, for appellant.
Rockland County District Attorney (Carrie A. Ciganek and Ranada Lewis of counsel), for respondent.
PRESENT: JERRY GARGUILO, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ
Appeal from a judgment of the Justice Court of the Town of Stony Point, Rockland County (Frank J. Phillips, J.), rendered February 18, 2020. The judgment convicted defendant, after a nonjury trial, of endangering the welfare of a child and harassment in the second degree, and imposed sentence.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged with endangering the welfare of a child (Penal Law § 260.10 [1]) and harassment in the second degree (Penal Law § 240.26 [1]). The charges arose from allegations that defendant, while working as a special education teacher at Stony Point Elementary School, used her foot to lift up the head of the victim, a five-year-old female student with Down's Syndrome, and, on other occasions, grabbed the victim's hair to lift the victim's head up. Following a nonjury trial, defendant was convicted as charged.
Defendant's contention that the trial evidence was legally insufficient to support her conviction is unpreserved for our review, as she failed to renew her motion for a trial order of dismissal after presenting her own evidence (see People v Kolupa, 13 N.Y.3d 786, 787 [2009]; People v Hines, 97 N.Y.2d 56, 61 [2001]; People v Acevedo, 136 A.D.3d 1386, 1386 [2016]; cf. People v Finch, 23 N.Y.3d 408, 412, 416 [2014]). In any event, viewing the evidence in the light most favorable to the People (see People v Delamota, 18 N.Y.3d 107, 113 [2011]; People v Acosta, 80 N.Y.2d 665, 672 [1993]), we find that the evidence adduced at trial was legally sufficient to establish defendant's guilt beyond a reasonable doubt (see People v Danielson, 9 N.Y.3d 342, 349 [2007]).
A person is guilty of endangering the welfare of a child when "[h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old" (Penal Law § 260.10 [1])." 'Actual harm to the child need not result for liability under the [endangering the welfare of a child] statute to attach' but rather the defendant must 'act in a manner which is likely to result in harm to the child, knowing of the likelihood of such harm coming to the child'" (People v Perez, 35 N.Y.3d 85, 96 [2020], quoting People v Simmons, 92 N.Y.2d 829, 830 [1998]).
Here, the People introduced evidence that defendant, a trained teacher, used her foot to lift the victim's head up on multiple occasions and also repeatedly grabbed the victim's hair to lift the victim's head up. The Justice Court, as the factfinder, could reasonably have concluded that the totality of defendant's conduct, directed at a five-year-old child with Down's Syndrome, who was at a crucial stage in her intellectual and social development, would have combined to create a likelihood of harm (see Simmons, 92 N.Y.2d at 831). Thus, viewing the evidence in the light most favorable to the People (see Delamota, 18 N.Y.3d at 113; Acosta, 80 N.Y.2d at 672), we conclude that the Justice Court, drawing upon its common human experience and commonsense understanding of the nature of children, could reasonably conclude that defendant knowingly engaged in conduct likely to be injurious to the victim (see Simmons, 92 N.Y.2d at 831).
"A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person[, h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same" (Penal Law § 240.26 [1]; see People v Repanti, 24 N.Y.3d 706, 710 [2015]). Such intent may-and in most instances must-be established by inferences drawn from a defendant's conduct and the surrounding circumstances (see People v Rodriguez, 17 N.Y.3d 486, 489 [2011]; People v Bracey, 41 N.Y.2d 296, 301 [1977]; People v Collins, 178 A.D.2d 789, 789 [1991]).
Here, the evidence established that defendant subjected the victim to physical contact by touching the victim's chin or head with defendant's foot and by grabbing the victim's hair. The Justice Court was entitled to infer from defendant's conduct and the surrounding circumstances an intent to harass, annoy or alarm the victim (see People v Gordon, 23 N.Y.3d 643, 650 [2014]; People v Vasquez, 71 Misc.3d 127 [A], 2021 NY Slip Op 50226[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]; People v Flores, 30 Misc.3d 135 [A], 2011 NY Slip Op 50152[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). While defendant argues that her intent was merely to direct the victim's attention to the classroom activities, even assuming that this was defendant's ultimate motive, there was sufficient evidence to infer that defendant had the intent to harass, annoy or alarm the victim in order to achieve that objective (see People v Vasquez, 2021 NY Slip Op 50226[U]; People v Smith, 47 Misc.3d 153 [A], 2015 NY Slip Op 50816[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; People v Corona, 25 Misc.3d 129 [A], 2009 NY Slip Op 52107[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).
Upon the exercise of our factual review power (see CPL 470.15 [5]; Danielson, 9 N.Y.3d at 348-349), while according great deference to the trier of fact'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]), we are satisfied that the guilty verdict was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633 [2006]).
Accordingly, the judgment of conviction is affirmed.
GARGUILO, P.J., DRISCOLL and VOUTSINAS, JJ., concur.