People v Traber (Ebony)

[*1] People v Traber (Ebony) 2012 NY Slip Op 51117(U) Decided on June 13, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 13, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and ALIOTTA, JJ
2010-2929 K CR.

The People of the State of New York, Respondent,

against

Ebony Traber, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Joel M. Goldberg, J.), rendered September 13, 2010. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree.

ORDERED that the judgment of conviction is reversed, on the facts, the accusatory instrument is dismissed, and the fine and surcharge, if paid, are remitted.

Defendant was charged with, among other offenses, attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), menacing in the third degree (Penal Law § 120.10), and harassment in the second degree (Penal Law § 240.26 [1]). The arresting officer testified that, after defendant had made rude remarks and gestures, the officer had informed defendant either that she was under arrest or that she was being issued a summons (there was contradictory testimony), and that defendant had walked away. After defendant had walked approximately 25 feet and entered the vestibule of a building, the officer followed her and proceeded to grab her around the chest from behind in an attempt to pull her to the floor and handcuff her. In the ensuing two-minute scuffle, defendant was alleged to have bent the officer's little finger [*2]backwards, and to have said, in substance, "I'm going to punch you in the face." After a nonjury trial, the Criminal Court convicted defendant of harassment in the second degree and dismissed the remaining charges. While the court found that the police had lacked probable cause to arrest defendant based on her initial remarks and gestures, as they were protected speech under the First Amendment, her subsequent actions were found by the court to show the requisite element of "intent to harass, annoy or alarm."

Given the compressed time frame and minimal harm caused by defendant's actions, we find that defendant's intent, in the brief struggle initiated without warning by the officer, may be more properly characterized as an intent to keep herself upright, to avoid injury, and to get free from the person who had grabbed her unexpectedly from behind that, in essence, she evinced a lawful intent to resist an unauthorized arrest (see People v Ramos, 3 Misc 3d 127[A], 2004 NY Slip Op 50324[U] [App Term, 1st Dept 2004]; cf. People v Sanza, 37 AD2d 632, 634 [1971]). As a result, we find defendant's conviction on the count of harassment in the second degree to be against the weight of the evidence.

Accordingly, the judgment of conviction is reversed, the accusatory instrument is dismissed, and the fine and surcharge, if paid, are remitted.

In light of this determination, we need not reach defendant's remaining contentions.

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 13, 2012