People v McTiernan (Charles)

[*1] People v McTiernan (Charles) 2006 NY Slip Op 51664(U) [13 Misc 3d 127(A)] Decided on August 17, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 17, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2005-489 N CR.

The People of the State of New York, Respondent,

against

Charles P. McTiernan, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Norman St. George, J.), rendered on April 7, 2005. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree.

Judgment of conviction affirmed.

Upon a review of the record, we are of the opinion that the evidence, when viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), was legally sufficient to establish that defendant, with the intent to harass, annoy or alarm his ex-wife, repeatedly committed acts which alarmed or seriously annoyed her and served no legitimate purpose (Penal Law § 240.26 [3]). The intent to commit a crime may be implied by the act itself, or it may be established by the defendant's conduct and the surrounding circumstances (People v McGee, 204 AD2d 353 [1994]). The court concluded that defendant's acts, along with the accompanying words, were undertaken chiefly to annoy and harass the complainant. While defendant argues that he was convicted of harassment in the second degree for exercising his right to free speech, the instant case involved more than mere speech; there were acts evincing a threat of force (cf. People v Dupont, 107 AD2d 247, 254 [1985]). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]). We note that the court below properly exercised its discretion in allowing the amendment of the accusatory instrument with respect to the time and date of the last incident, since the amendment did not alter the theory of the case or result in prejudice to defendant (see People v Hankins, 265 AD2d 572 [1999]). [*2]

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: August 17, 2006