People v Horner (Randolph)

[*1] People v Horner (Randolph) 2004 NY Slip Op 51457(U) Decided on November 5, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 5, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS -x PRESENT : McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
2002-1650 RO CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

RANDOLPH HORNER, Appellant.

Appeal by defendant from a judgment of the Justice Court, Town of Clarkstown, Rockland County (J. Flick, J.), rendered November 15, 2002, convicting him of harassment in the second degree (Penal Law § 240.26 [1]) and imposing sentence.

Judgment of conviction unanimously affirmed.

The information in the case at bar was legally sufficient as it satisfied the criteria set forth in the Criminal Procedure Law (see CPL 100.15, 100.40 [1]). The required intent, i.e., the culpable mental state required for conviction, can be inferred from both the facts alleged in the instant information and the accusatory part thereof (People v Roberto Durao, 3 Misc 3d 134 [A], 2004 NY Slip Op 50450 [U] [App Term, 9th & 10th Jud Dists]; People v Sassower, NYLJ, Nov. 6, 1998 [App Term, 9th & 10th Jud Dists]). Although the People failed to provide defendant with the requisite CPL 710.30 notice regarding the statement made by defendant to the investigative officer, inasmuch as the statement had no bearing on defendant's guilt and merely reflected his opinion that the charges were unfounded, the error was harmless (see People v Reed, 154 AD2d 629, 630 [1989], lv denied 75 NY2d 974 [1989]).

At trial, the court was presented with two different versions as to what occurred. The evidence was legally sufficient to prove defendant's guilt of harassment in the second degree beyond a reasonable doubt (see Penal Law § 240. 26 [1]). "Resolution of issues of credibility, as well as the weight to be accorded the evidence, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses" (Matter of Crystal R.,10 AD3d 397, 398 [2004]) and [i]ts determination should not be disturbed unless clearly unsupported by the record" (id.; see also People v Atlas, 183 App Div 595 [1918], affd 230 NY 629 [1921]; People v Garafolo, 44 AD2d 86, 88 [1974]). Upon the exercise of our factual review power (see CPL 470.15 [5]), we are of the view that the finding of guilt was not against the weight of the evidence.

Finally, we note that the sentence imposed was not unduly harsh or excessive. [*2]

Decision Date: November 05, 2004