Opinion
No. 2013–778 K CR.
08-01-2016
The PEOPLE of the State of New York, Respondent, v. Barrington BOWEN, Appellant.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (John T. Hecht, J.), rendered March 7, 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 with assault in the third degree (Penal Law § 120.00 [1 ] ), menacing in the third degree (Penal Law § 120.15 ), and harassment in the second degree (Penal Law § 240.26[1] ). The charge of assault in the third degree was subsequently reduced to attempted assault in the third degree (Penal Law §§ 110.00, 120.00[1] ).
At a nonjury trial, the evidence adduced established that defendant and the complainant, who had been involved in a relationship, shared defendant's apartment. In 2012, defendant told the complainant that he would commence eviction proceedings against her in Housing Court if she did not move out. The complainant testified that, at approximately 8:25 p.m. on October 7, 2012, she overheard defendant talking on his cell phone about an alleged incident that caused the breakup of their relationship. The complainant argued with defendant, who was in his bed. The complainant either snatched or smacked defendant's cell phone with her hand, knocking it away from defendant. According to the complainant, defendant got out of the bed, punched her in the head and ribs, and pushed her to the ground. Defendant then got on top of her, held her hands down, and told her that he would kill her. It is undisputed that the complainant sustained a laceration to her lip and a scratch on her arm. Two days after the incident, the complainant went to the hospital because she had, among other things, pain in her rib cage area. While the complainant testified that she had sustained a fractured rib and a broken arm, her medical records, which were admitted in evidence, established that this was not the case. Defendant testified that the complainant had jumped on top of him while he was in the bed, and put her hands on his throat. They struggled and fell on the floor. Defendant denied that he had punched her.
Following the nonjury trial, the Criminal Court found defendant not guilty of attempted assault in the third degree and menacing in the third degree, and guilty of harassment in the second degree.
On appeal, defendant contends that the People failed to establish his guilt beyond a reasonable doubt, that the People failed to disprove his justification defense, and that the verdict of guilt was against the weight of the evidence. Moreover, defendant contends that the judgment of conviction should be reversed and the accusatory instrument dismissed because he was found not guilty of attempted assault in the third degree and menacing in the third degree. Defendant further claims that prior consistent statements made by the complainant were improperly admitted in evidence, and that his trial counsel was ineffective for failing to object to the admission of the statements in evidence.
We note that defendant's legal sufficiency claim is only partially preserved for appellate review. In his motion to dismiss at trial, defendant argued only that the People had failed to disprove his justification defense. He did not specifically argue that the People had failed to present evidence establishing the elements of harassment in the second degree (see CPL 470.05 [2 ]; People v. Carncross, 14 NY3d 319, 324–325 [2010] ; People v. Gray, 86 N.Y.2d 10, 19 [1995] ; People v. Flores, 30 Misc.3d 135[A], 2011 N.Y. Slip Op 50152[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620 [1983] ), we find that defendant's guilt of harassment in the second degree was established beyond a reasonable doubt, based upon his conduct and the surrounding circumstances (see People v. Flores, 30 Misc.3d 135[A], 2011 N.Y. Slip Op 50152[U] ).
The Court of Appeals has held that "petty forms of offensive touching, such as striking, shoving and kicking, are prohibited when committed with the intent to annoy, harass or alarm the victim" (People v. Bartkow, 96 N.Y.2d 770, 772 [2001] ; see People v. Kramer, 50 Misc.3d 27, 32 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ). In the case at bar, the evidence that defendant punched the complainant and caused a laceration to her lip and a scratch on her arm established the elements of harassment in the second degree, as defendant possessed "the requisite intent to harass, annoy or alarm' [her] when [he] struck [her] or otherwise subjected [her] to physical contact" (People v. Crandon, 15 Misc.3d 130[A], 2007 N.Y. Slip Op 50659[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007], quoting Penal Law § 240.26[1] ). Furthermore, contrary to defendant's assertion, the fact that he was found not guilty of attempted assault in the third degree and menacing in the third degree, but guilty of harassment in the second degree, does not warrant the reversal of his conviction of the latter charge (see People v. Bartkow, 96 N.Y.2d at 772 ; People v. Pirozzi, 237 A.D.2d 628, 631 [1997] ; People v. Kramer, 50 Misc.3d at 32 ; People v. Crandon, 15 Misc.3d 130[A], 2007 N.Y. Slip Op 50659[U] ).
The People presented legally sufficient evidence disproving defendant's justification defense. The complainant testified that defendant had punched her, causing her to sustain various injuries. Thus, the People's witness's testimony established that defendant was the aggressor and, thus, defendant's claim of justification was disproven beyond a reasonable doubt (see Matter of Argenis N., 257 A.D.2d 488, 489 [1999] ; People v. Ziffer, 43 Misc.3d 140 [A], 2014 N.Y. Slip Op 50809[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014] ).
In conducting an independent review of the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348 [2007] ), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v. Mateo, 2 NY3d 383 [2004] ; People v. Bleakley, 69 N.Y.2d 490, 495 [1987] ; People v. Zephyrin, 52 AD3d 543 [2008] ). Upon a review of the record, we find that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633 [2006] ).
Defendant failed to object to the testimony regarding prior consistent statements that defendant had punched the complainant. Consequently, he failed to preserve for appellate review any claim that such testimony was inadmissible (see CPL 470.05[2] ; People v. Hawkins, 11 NY3d 484, 492 [2008] ; People v. Arroyo, 128 AD3d 843, 844 [2015] ; People v. Walker, 70 AD3d 870, 871 [2010] ). In any event, as defendant contends, absent an applicable exception, proof of a witness's prior consistent statement by another witness is barred by the rules against hearsay and bolstering (see People v. Buie, 86 N.Y.2d 501, 509–511 [1995] ), as the "risk that a prior consistent statement may, by simple force of repetition, give to a jury an exaggerated idea of the probative force of a party's case' " (People v. Ludwig, 24 NY3d 221, 230 [2014], quoting People v. Smith, 22 NY3d 462, 466 [2013] ). However, "[p]rior consistent statements will often be less prejudicial to the opposing party than other forms of hearsay, since by definition the maker of the statement [says] the same thing in court that he [or she] said out of it, and [the witness's] credibility can be tested by cross-examination. Thus, in many cases, the admission of purely redundant hearsay creates no greater evil than [a] waste of time" (People v. Smith, 22 NY3d at 465–466 ).
Furthermore, even absent an exception to the hearsay rule, the admission of such evidence is subject not to an absolute bar but to the exercise of a court's discretion as to whether the evidence is "more prejudicial than probative" (id. at 467 ). In the case of a bench trial, as involved herein, the risk of prejudice is diminished and, indeed, negated, by the recognition that "a court sitting as the trier of fact is presumed to have considered only the competent evidence in reaching its verdict despite awareness of facts which cannot properly be relied upon in making the decision' " (People v. Maduro, 27 Misc.3d 127[A], 2010 N.Y. Slip Op 50577[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010], quoting People v. Moreno, 70 N.Y.2d 403, 406 [1987] ; see People v. Gupton, 281 A.D.2d 963 [2001] [at a nonjury trial, the court is presumed to have disregarded prior consistent statement evidence in reaching its verdict]; People v. Williams, 38 Misc.3d 4, 8 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [where the court sits as the trier of fact, there is "little likelihood of prejudice" arising from the admission of incompetent evidence] ).
In any event, it need not be decided whether the evidence was admissible under the excited utterance exception to the hearsay rule because the testimony was admissible to explain the sequence of events that had resulted in defendant's arrest (see People v. Mack, 89 AD3d 864, 866 [2011] ["(I)f the out-of-court statement qualifies under a separate exception to the rule against hearsay, it may be admitted notwithstanding the fact that it might also be a prior consistent statement' "], quoting People v. Buie, 86 N.Y.2d at 511 ]; see also People v. Dorcinvil, 122 AD3d 874, 875–876 [2014] [hearsay and bolstering objections to the admission of a witness's prior statements to the police are without merit because the testimony served to "complete the narrative and explain the sequence of events leading to the defendant's arrest"] ).
As there was no error in admitting the testimony regarding the prior consistent statements, trial counsel was not ineffective by failing to object to the testimony (see People v. Ludwig, 104 AD3d 1162, 1163 [2013], affd 24 NY3d 221 [2014] ; People v. Maduro, 27 Misc.3d 127[A], 2010 N.Y. Slip Op 50577[U] ).
Accordingly, the judgment of conviction is affirmed.
PESCE, P.J., and ALIOTTA, J., concur.
WESTON, J., dissents in a separate memorandum.
WESTON, J., dissents and votes to reverse the judgment of conviction and to dismiss the accusatory instrument in the following memorandum:
Upon a review of the record, I am of the opinion that the verdict finding defendant guilty of harassment in the second degree was against the weight of the evidence (see CPL 470.15[5] ; People v. Romero, 7 NY3d 633 [2006] ). The sole evidence proffered by the People to establish defendant's guilt was complainant's own testimony, which was untrustworthy and unreliable. It is undisputed that defendant had asked complainant, more than once, to leave his apartment during their tumultuous relationship, but complainant did not do so. On October 7, 2012, complainant, who was occupying a separate bedroom, admittedly initiated the confrontation by snatching or smacking defendant's cell phone from his face with her hand. Although complainant testified that defendant punched her in the head and ribs causing her to sustain, among other things, a fractured rib and a broken arm, complainant's injuries were belied by the medical records, which revealed nothing more than a wound on her lower lip and complaints of pain in her rib cage. Notably absent were any broken bones or fractures. Even the injuries that complainant actually sustained—a laceration to her lip and a scratch on her arm—are not consistent with her allegation that she was punched in the head and ribs.
In view of complainant's interest in remaining in the apartment and her admission that she initiated the confrontation, defendant's version of the events was entirely credible. Defendant testified that complainant became enraged as he was speaking to a friend on his cell phone. She pushed open the door to his room and slapped him across the face after he turned around and ignored her. Defendant testified that he only pushed complainant after she got on top of him and placed her hands around his throat. Any injury complainant sustained was obviously the result of the ensuing struggle and not the result of defendant's "intent to annoy, harass or alarm" complainant (Penal Law § 240.26[1] ). On this record, based upon a fair interpretation of the facts, I conclude that the verdict finding defendant guilty of harassment in the second degree was against the weight of the evidence.
Accordingly, I vote to reverse the judgment of conviction and to dismiss the accusatory instrument.