Opinion
2016–276 N CR
01-18-2018
The PEOPLE of the State of New York, Respondent, v. Martin GHATANI, Appellant.
Melvyn K. Roth, Esq., for appellant. Nassau County District Attorney (Andrea M. DiGregorio and Amanda Manning of counsel), for respondent.
Melvyn K. Roth, Esq., for appellant.
Nassau County District Attorney (Andrea M. DiGregorio and Amanda Manning of counsel), for respondent.
PRESENT: ANTHONY MARANO, P.J., BRUCE E. TOLBERT, JERRY GARGUILO, JJ
ORDERED that the judgment of conviction is reversed, on the law, the accusatory instrument is dismissed, and the fine, if paid, is remitted.
In April 2014, an accusatory instrument was filed charging defendant with criminal mischief in the fourth degree (intentional) ( Penal Law § 145.00 [1 ] ), criminal mischief in the fourth degree (reckless) ( Penal Law § 145.00 [3 ] ), harassment in the first degree ( Penal Law § 240.25 ), and harassment in the second degree ( Penal Law § 240.26 [1 ] ). The accusatory instrument provides, in pertinent part, that "defendant ... with the intent to harass, annoy alarm [the] victim [defendant's wife], followed her in her vehicle as she drove her daughter to school."
At a jury trial, evidence was presented that defendant and his wife had been having marital difficulties for over a year and that, on the morning of April 3, 2014, they had an argument. Defendant's wife testified that, as she was attempting to leave the house in order to take their daughter to school, defendant blocked her way, but she pushed passed him. After she and her daughter got into her car, defendant ran out of the house, got into his car, and blocked her car with his car. She made a K-turn and, as she drove up the hill out of the cul-de-sac, and was passing defendant's car, defendant backed his car into the back passenger's side of her car. She did not stop after this happened, but continued to drive to the school, and defendant followed her in his car. Neither car exceeded the 20 or 25 miles per hour speed limit during the approximately one mile drive to the school. Defendant testified that he had left their house in order to get away from his wife's rage, and sat in his car. He then saw his wife and daughter leave the house and get into his wife's car. As his wife was driving out of their cul-de-sac, his wife's car "clipped" his car. Defendant further testified that, although he drove behind his wife's car to the school, he occasionally lost view of her car as the cars made turns and he stopped at traffic-control devices. Both witnesses testified that, when defendant's wife arrived at the school, she turned into the school's drop-off area, and defendant did not follow her into this area. Defendant stated that he had followed his wife because he was concerned about their daughter who had been crying, and he wanted to make sure that his daughter arrived at school safely.
Upon the conclusion of all of the evidence, defense counsel renewed his motion for a trial order of dismissal. The District Court, among other things, partially granted the motion by dismissing the harassment in the second degree ( Penal Law § 240.26 [1 ] ) charge. With the consent of defense counsel, the court added the lesser included offense of harassment in the second degree under subdivision three of Penal Law § 240.26. Following deliberations, the jury found defendant not guilty of the criminal mischief charges and found him guilty of the harassment in the second degree ( Penal Law § 240.26 [3 ] ) charge.
On appeal, defendant contends, among other things, that the verdict was against the weight of the evidence. We agree.
Penal Law § 240.26 (3) provides that a "person is guilty of harassment in the second degree ... when, with intent to harass, annoy or alarm another person ... [h]e or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose." Upon the exercise of our factual review power (see CPL 470.15 [5 ]; People v. Danielson , 9 NY3d 342, 348 [2007] ; People v. Romero , 7 NY3d 633, 636 [2006] ), after weighing "the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Zephyrin , 52 AD3d 543, 543 [2008] [internal quotation marks and citation omitted] ), we "determine ... that an acquittal ... would not have been unreasonable based upon the evidence presented, and ... that the [trier of fact] failed to accord the evidence the weight it should have been accorded" (id. ;see People v. Danielson , 9 NY3d at 348 ). Upon a review of the evidence adduced at trial, we find that the guilty verdict of harassment in the second degree was against the weight of the evidence as the People failed to establish that defendant's course of conduct of following his wife to their daughter's school in a nonaggressive manner—e.g., without following his wife's car into the drop-off area and without any evidence of his tailgating his wife's car or of any harassing conduct after his daughter was dropped off—served no legitimate purpose, as that conduct demonstrated the legitimate purpose of allowing defendant to be certain that his daughter arrived at school safely. We pass on no other issue.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.