People v Pezza (Joseph)

[*1] People v Pezza (Joseph) 2015 NY Slip Op 51433(U) Decided on September 18, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 18, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TOLBERT, J.P., MARANO and CONNOLLY, JJ.
2013-1318 N CR

The People of the State of New York, Respondent,

against

Joseph Pezza, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Douglas J. Lerose, J.), rendered June 24, 2013. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in an accusatory instrument with harassment in the second degree (Penal Law § 240.26 [1]). At a nonjury trial, the testimony revealed that the complainant, an attorney, was representing a client in a divorce action when defendant, the boyfriend of the client's wife, approached the complainant in the hallway of an office building where a deposition of the wife was taking place, cursed at him, "chest bumped" him in the head, and spit in his face. Following the trial, the District Court found defendant guilty as charged.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People Danielson, 9 NY3d 342 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane, 7 NY3d 888, 890 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Here, the uncontroverted evidence demonstrated that defendant subjected the complainant to physical contact, thereby establishing this element of Penal Law § 240.26 (1) (see e.g. People v Simmons, 42 Misc 3d 462 [Crim Ct, Bronx County 2013]; People v Carlson, 183 Misc 2d 630 [Crim Ct, NY County 1999]). Moreover, defendant's intent to harass, annoy or alarm the complainant could be inferred from both defendant's verbal and physical actions, i.e., "from the act itself," as well as from defendant's threatening conduct arising from his apparent anger at the complainant's questioning of defendant's girlfriend during the deposition, i.e., "defendant's conduct and the surrounding circumstances" (People v Bracey, 41 NY2d 296, 301 [1977]; see also People v McGee, 204 AD2d 353 [1994]; People v Griffin, 31 Misc 3d 130[A], 2011 NY Slip Op 50574[U] [App Term, 9th & 10th Jud Dists 2011]; People v Strong, 179 Misc 2d 809 [App Term, 9th & 10th Jud Dists 1999]). In view of the foregoing, we find that the verdict convicting defendant of harassment in the second degree in violation of Penal Law § 240.26 (1) was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

Accordingly, the judgment of conviction is affirmed.

Tolbert, J.P., Marano and Connolly, JJ., concur.

Decision Date: September 18, 2015