Opinion
2006-2100 N CR.
Decided February 26, 2008.
Appeals from (1) an order of the District Court of Nassau County, First District (Norman St. George, J.), dated November 1, 2006, and (2) a judgment of the same court, rendered November 3, 2006. The order denied defendant's motion to set aside the verdict. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree.
Appeal from order dismissed.
Judgment of conviction affirmed.
PRESENT: RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ.
The accusatory instrument was facially sufficient to allege the offense of harassment in the second degree (Penal Law § 240.26; People v Allen, 92 NY2d 378, 385). The factual allegations suffice where, "given a fair and not overly restrictive or technical reading" ( People v Casey, 95 NY2d 354, 360), they are of a nonhearsay evidentiary character and tend to support every element of the charge (CPL 100.15; 100.40 [1]). The instrument, tracking the statutory language ( e.g. People v Yakubova , 11 AD3d 644 , 645), alleged defendant's "intent to harass, annoy or alarm" the victim (Penal Law § 240.26) and sufficient specific physical and verbal acts to establish "the element of physical contact: actual, attempted or threatened" ( People v Bartkow, 96 NY2d 770, 772; see Penal Law § 240.26). With respect to the former element, contrary to defendant's contention, there is no necessity to plead and prove premeditation, which is not one of the culpable mental states provided in the Penal Law ( see Penal Law § 15.00; § 15.05 [1]). In any event, the instrument sufficed to plead the requisite intent ( People v Bracey, 41 NY2d 296, 301; People v McGee, 204 AD2d 353, 354 [1994]; People v Leiner, NYLJ, Oct. 15, 1997, at 34, col 5 [App Term, 2d 11th Jud Dists]).
Defendant's claims with respect to the legal sufficiency of the trial proof are not preserved for appellate review (CPL 470.05; People v Gray, 86 NY2d 10, 19). Were we to review the evidence in the interest of justice, we would find the proof legally sufficient to support the verdict ( People v Contes, 60 NY2d 620, 621; see People v Bartkow, 96 NY2d at 772; Lynn v State of New York , 33 AD3d 673 , 674; Matter of Czop v Czop , 21 AD3d 958 , 959). We note that the proof of defendant's verbal conduct was admissible as circumstantial evidence of his intent ( cf. People v Dietze, 75 NY2d 47). Finally, in our factual review of the evidence, we must accord great deference to the credibility findings of the court below ( People v Romero , 7 NY3d 633 , 644-645; e.g. People v Green , 41 AD3d 862 ). In view of the foregoing, we cannot say that the verdict was contrary to the weight of the evidence (CPL 470.05; People v Bleakley, 69 NY2d 490).
We note that no direct appeal lies from an order denying a motion pursuant to CPL 330.30 ( People v Parisi , 5 Misc 3d 131 [A], 2004 NY Slip Op 51349[U] [App Term, 9th 10th Jud Dists 2004]), and the appeal therefrom must be dismissed. However, the issues raised in said motion are brought up for review upon the appeal from the judgment. We find that the court properly denied the motion without a hearing (CPL 330.40 [c], [e] [i]). The newly discovered evidence consisted of an affidavit by a relative of the complainant wherein he recounted an alleged post-trial recantation by complainant of portions of her trial testimony ( e.g. People v Bowers , 4 AD3d 558 , 560). However, evidence "which merely impeaches or contradicts former evidence" generally "does not justify ordering a new trial" ( People v Paasewe, 276 AD2d 807, 808; see People v Larios , 25 AD3d 569 , 570; People v Cabrera, 1 AD3d 375, 376), as it is "well settled that there is no form of proof so unreliable as recanting testimony" ( People v Davenport , 233 AD2d 771 , 773 [internal quotation marks and citation omitted]; e.g. People v Thibodeau, 267 AD2d 952, 953; People v Turner, 215 AD2d 703; People v Rodriguez, 201 AD2d 683). Accordingly, the judgment of conviction is affirmed.
Rudolph, P.J., McCabe and Scheinkman, JJ., concur.