People v LABERTA (LAURA)

[*1] People v LABERTA (LAURA) 2005 NY Slip Op 50066(U) Decided on January 26, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 26, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, J.P., ANGIOLILLO and COVELLO, JJ.
2004-63 OR CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

LAURA LABERTA, Appellant.

Appeal by defendant from a judgment of the Justice Court, Town of Deerpark, Orange County (J. Ehre, J.), rendered on December 18, 2003, convicting her of harassment in the second degree (Penal Law § 240.26 [1]) and imposing sentence.

Judgment of conviction unanimously reversed on the facts and as a matter of discretion in the interest of justice, accusatory instrument dismissed and fine, if paid, remitted.

The evidence adduced at trial showed that defendant school bus driver approached complainant, a coworker, grabbed her arm, wagged an index finger at her face and reprimanded her for purportedly speeding in the parking lot on a prior occasion. Defendant told complainant that she had reported the incident to their employer and that on the next occasion, she would report complainant to the police.

Although the justice's return indicates that defendant made no motions to dismiss in the court below before being found guilty, we choose to exercise our interest of justice jurisdiction so as to reach the issue of whether defendant acted with the requisite, statutory intent (see CPL 470.15 [3], [6]; People v Ruiz, 159 AD2d 656, 657 [1990], lv denied 76 NY2d 742 [1990]). Commission of the offense would have required that defendant act with the intent to annoy, harass or alarm complainant (Penal Law § 240.26) and, under the circumstances, we are of the view that the implicit finding and the verdict of the trial court in the People's favor with respect to this element is against the weight of the evidence (see CPL 470.15 [5]; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Jemzura, 29 NY2d 590 [1971]; People v Bruk, NYLJ, Sept. 16, [*2]1993 [App Term, 9th & 10th Jud Dists]; S.G. v L.B. - M., 184 Misc 2d 89, 90-91 [2000]).

Decision Date: January 26, 2005