Opinion
No. 2012–2340 K CR.
2014-05-29
The PEOPLE of the State of New York, Respondent, v. Jermaine JONES, Appellant.
Present: WESTON, J.P., ALIOTTA and SOLOMON, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (ShawnDya L. Simpson, J.), rendered October 19, 2012. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree and two counts of trespass.
ORDERED that the judgment of conviction is modified, on the law, by vacating the conviction of harassment in the second degree and dismissing that count of the accusatory instrument; as so modified, the judgment of conviction is affirmed.
In May 2010, an accusatory instrument was filed charging defendant with, among other things, harassment in the second degree (Penal Law § 240.26[3] ) and two counts of trespass (Penal Law § 140.05). Following a nonjury trial, defendant was convicted of these charges. On appeal, defendant contends, among other things, that so much of the accusatory instrument as charged him with harassment in the second degree and the second trespass count is facially insufficient; that the evidence is legally insufficient to support his conviction of the first trespass count; that the verdict convicting him of the second trespass count is against the weight of the evidence; and that his sentence is excessive.
In order to be sufficient on its face, the information (and/or its supporting depositions) must allege, among other things, “facts of an evidentiary character” (CPL 100.15[3] ) that “establish, if true, every element of the offense charged” (CPL 100.40[1][c]; see People v. Dumas 68 N.Y.2d 729, 731 [1986] ). These requirements are jurisdictional ( see People v. Kalin, 12 N.Y.3d 225 [2009]; People v. Casey, 95 N.Y.2d 354 [2000]; People v. Alejandro, 70 N.Y.2d 133 [1987]; People v. Dumas, 68 N.Y.2d at 731, 506 N.Y.S.2d 319, 497 N.E.2d 686).
A person is guilty of harassment in the second degree (Penal Law § 240.26 [3] ) if, with the intent to harass, annoy or alarm another person, he “engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.” When a statute provides for a “course of conduct” or “repeated acts,” factual allegations supporting only a single incident will not suffice ( see People v. Valerio, 60 N.Y.2d 669 [1983]; People v. Wood, 59 N.Y.2d 811 [1983] ). The term “course of conduct” may reasonably be interpreted to mean a pattern of conduct comprised of a series of acts over a period of time, however short, which evidence a continuity of purpose ( see People v. Brandel, 30 Misc.3d 134[A], 2011 N.Y. Slip Op 50082[U] [App Term 9th & 10th Jud Dists 2011] ).
The factual allegations of the information, stating that defendant “began cursing, using abusive language and making threats” to the complainant, fail to establish, if true, that defendant engaged in a course of conduct or repeatedly committed acts, in regard to this complainant, inasmuch as they describe a verbal outburst comprised of a single incident ( see e.g. People v. Wood, 59 N.Y.2d 811, 464 N.Y.S.2d 738, 451 N.E.2d 485). The same analysis also applies to defendant's actions in regard to the second complainant. The factual allegations of the information also fail to establish any of the elements of Penal Law § 240.26(1) or (2) ( cf. People v. Todaro, 26 N.Y.2d 325, 330 [1970] ). Consequently, the count of the information charging defendant with harassment in the second degree is dismissed.
A person is guilty of trespass “when he knowingly enters or remains unlawfully in or upon premises” (Penal Law § 140.05). The information alleges that, at or about 12:55 p.m. on May 30, 2010, defendant was ordered to “leave the hospital premises,” refused to leave the hospital, and had to be escorted from the hospital—which resulted in the first trespass charge—and that, on the same day, at about 2:19 p.m., “defendant, entered onto hospital property”—which resulted in the second trespass charge. We find that so much of the information as stated that defendant was ordered to leave the hospital at 12:55 p.m. suffices to show that he “knowingly enter[ed]” the hospital “unlawfully” when he returned to the hospital property a little more than an hour later at 2:19 p.m. Consequently, the information is jurisdictionally sufficient with respect to the second trespass count.
With respect to the first trespass count, defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 491–492 [2008]; People v. Hines, 97 N.Y.2d 56, 61 [2001]; People v. Gray, 86 N.Y.2d 10 [1995] ). In any event, the evidence, viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621 [1983] ), was legally sufficient to establish defendant's guilt beyond a reasonable doubt. The evidence established that, after the hospital security guard and the police officer had repeatedly ordered defendant to leave the hospital, defendant refused to leave and had to be escorted out by a police officer, thereby demonstrating that defendant “knowingly ... remain[ed] unlawfully in” the hospital in violation of Penal Law § 140.05.
Moreover, upon the exercise of our factual review power ( see CPL 470.15 [5]; People v. Danielson, 9 N.Y.3d 342, 348–349 [2007] ), while according great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility ( see People v. Lane, 7 N.Y.3d 888, 890 [2006]; People v. Bleakley, 69 N.Y.2d 490, 495 [1987] ), we are satisfied that so much of the verdict as found defendant guilty of the second count of trespass was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 643–646 [2006] ).
Furthermore, inasmuch as defendant has not shown that any extraordinary circumstances exist, we find no reason to modify his sentence ( see People v. Hodges, 13 A.D.3d 979 [2004]; People v. Dolphy, 257 A.D.2d 681 [1999] ).
Accordingly, the judgment of conviction is modified by vacating the conviction of harassment in the second degree and dismissing that count of the accusatory instrument, and the judgment is otherwise affirmed.