People v Aponte (Herbert)

People v Aponte 2009 NY Slip Op 29283 [24 Misc 3d 118] Accepted for Miscellaneous Reports Publication AT2 Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 7, 2009

[*1] The People of the State of New York, Respondent,
v
Herbert Aponte, Appellant.

Supreme Court, Appellate Term, Second Department, June 29, 2009

APPEARANCES OF COUNSEL

Legal Aid Society, New York City (Steven Banks and Jonathan Garelick of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Ellen C. Abbot and Bradley Chain of counsel), for respondent.

{**24 Misc 3d at 119} OPINION OF THE COURT

Memorandum.

Judgment of conviction, insofar as appealed from, affirmed.

The accusatory instrument charged defendant with, inter alia, stalking in the third degree (Penal Law § 120.50 [3]) and harassment in the first degree (Penal Law § 240.25). After a nonjury trial, defendant was found guilty of, as relevant to this appeal, attempted stalking in the third degree (Penal Law §§ 110.00, 120.50 [3]) and harassment in the first degree. This appeal ensued.

Contrary to defendant's contention, the factual allegations of the accusatory instrument, insofar as it charged defendant with stalking in the third degree (Penal Law § 120.50 [3]) and harassment in the first degree (Penal Law § 240.25), adequately established every element of said offenses (see generally CPL 100.15, 100.40 [1]). In addition, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of attempted stalking in the third degree and harassment in the first degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]; People v Romero, 7 NY3d 633 [2006]).

On the issue of whether attempted stalking in the third degree is a legally cognizable offense, we conclude that it is. "[W]here a penal statute imposes strict liability for creating an unintended result, an attempt to commit that crime is not a legally cognizable offense . . . By [*2]contrast, where a penal statute imposes strict liability for committing certain conduct, an attempt is legally cognizable, since one can attempt to engage in conduct" (People v Prescott, 95 NY2d 655, 659 [2001] [citations omitted]).

The crime of third-degree stalking does not "impose[ ] strict liability for creating an unintended result" (id.)it does not predicate liability upon the (possibly unintended) result of harm experienced by the victim (cf. People v Campbell, 72 NY2d 602 [1988]). Rather, it imposes "strict liability for committing{**24 Misc 3d at 120} certain conduct" (id.)it predicates liability upon the intentional engaging in a "course of conduct" that is "likely" to inflict harm on the victim (see e.g. People v Vargas, 8 Misc 3d 113 [App Term, 2d & 11th Jud Dists 2005] [attempted endangering the welfare of a child is a legally cognizable offense, since it proscribes a particular conductthe knowing acts likely to be injurious to a child's welfare]). Thus, the crime of attempted stalking in the third degree (Penal Law §§ 110.00, 120.50 [3]) is not a legal impossibility.

Accordingly, the judgment of conviction, insofar as appealed from, is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.