Opinion
2012-1807 K CR
09-17-2015
The PEOPLE of the State of New York, Respondent, v. Judy KRAMER, Appellant.
Abraham B. Strassfeld, Brooklyn, for appellant. Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove, Solomon Neubort and Michael Brenner of counsel), for respondent.
Abraham B. Strassfeld, Brooklyn, for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove, Solomon Neubort and Michael Brenner of counsel), for respondent.
Opinion
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Geraldine Pickett, J.), rendered June 22, 2012. The judgment convicted defendant, after a nonjury trial, of attempted assault in the third degree, menacing in the third degree, two counts of criminal trespass in the third degree, and harassment in the second degree.
ORDERED that the judgment of conviction is modified, on the facts, by vacating the convictions of attempted assault in the third degree, menacing in the third degree, and two counts of criminal trespass in third degree, and by providing that the counts of the accusatory instrument charging these offenses are dismissed; as so modified, the judgment of conviction is affirmed.
The People charged defendant with numerous offenses, of which the following were ultimately tried by the court: two counts of criminal trespass in the third degree (Penal Law § 140.10[a] ), two counts of attempted criminal trespass in the second degree (Penal Law §§ 110.00, 140.15), two counts of trespass (Penal Law § 140.05), attempted assault in the third degree (Penal Law §§ 110.00, 120.001 ), menacing in the third degree (Penal Law § 120.15), three counts of attempted criminal contempt in the second degree (Penal Law §§ 100.00, 215.503 ), and one count of harassment in the second degree (Penal Law § 240.261 ). The charges arose in the course of a long-running dispute between the complainants (Rabbi Chaim Halberstam and his spouse, Roiza Halberstam) and defendant with respect to the complainants' efforts to recover possession of defendant's ground-floor apartment in a building which is owned by the complainants, who occupy the third-floor apartment (see Halberstam v. Kramer, 27 Misc.3d 1206[A], 2010 N.Y. Slip Op. 50571[U], 2010 WL 1407982 [Civ.Ct., Kings County 2010], affd. 39 Misc.3d 1126[A], 2013 N.Y. Slip Op. 50408[U], 2013 WL 1234854 [App.Term, 2d, 11th & 13th Jud.Dists.2013] ). After a nonjury trial, defendant was convicted of attempted assault in the third degree, menacing in the third degree, two counts of criminal trespass in the third degree and harassment in the second degree. On appeal, defendant alleges numerous claims of error, including, among others, that the accusatory instrument failed to state facts sufficient to establish the counts of criminal trespass in the third degree, that the roughly 11–month delay between the close of evidence and the verdict was unreasonable, that the convictions of all of the offenses were against the weight of the evidence, and, in the alternative, that the judgment of conviction should be reversed in the interest of justice and the accusatory instrument dismissed.
Criminal Procedure Law section 350.10(3)(d), which requires that a court “consider the case and render a verdict,” is construed to mean that a verdict must be rendered “within a reasonable time” (People v. South, 41 N.Y.2d 451, 454, 393 N.Y.S.2d 695, 362 N.E.2d 246 1977; see e.g. People v. Williams, 24 Misc.3d 131[A], 2009 N.Y. Slip Op. 51358[U], *2, 2009 WL 1924794 [App.Term, 9th & 10th Jud.Dists.2009] ). However, as defendant failed to object, at any of the several adjournments between the close of evidence and summations, that the verdict was thereby unduly delayed, the claim is not preserved for appellate review (Matter of Dania W., 65 A.D.3d 1356, 1356, 886 N.Y.S.2d 183 2009; People v. Torrence, 305 A.D.2d 1042, 1043–1044, 758 N.Y.S.2d 886 2003; People v. Francis, 189 A.D.2d 822, 823, 592 N.Y.S.2d 448 1993; cf. People v. Hryn, 144 A.D.2d 961, 534 N.Y.S.2d 268 1988; People v. Sabino, 39 Misc.3d 127[A], 2013 N.Y. Slip Op. 50417[U], *2, 2013 WL 1234898 [App.Term, 9th & 10th Jud.Dists.2013] ). In any event, summations are “deemed a part of the trial” itself (People v. Mullen, 44 N.Y.2d 1, 4, 403 N.Y.S.2d 470, 374 N.E.2d 369 1978 ), and, in a nonjury trial, the verdict period commences at the close of summations, where permitted (see CPL 350.103[c] ). Assuming, without deciding, that defendant's failure to object to the 32–day delay between summations and the verdict does not bar the claim, there was no deprivation of the right to a timely verdict. “There is no specific number of days within which a court must render its verdict” (People v. Santana, 232 A.D.2d 663, 663, 649 N.Y.S.2d 456 1996 ), and whether the delay is unreasonable “turn[s] largely on the circumstances of the individual case,” the most salient of which are whether the court issues a written decision, the complexity of the issues of fact and law, and the nature and quantity of the evidence to be reviewed (People v. South, 41 N.Y.2d at 454, 393 N.Y.S.2d 695, 362 N.E.2d 246; see also People v. Santana, 232 A.D.2d at 664, 649 N.Y.S.2d 456; People v. Francis, 189 A.D.2d at 823, 592 N.Y.S.2d 448; People v. Stewart, 45 Misc.3d 127[A], 2014 N.Y. Slip Op. 51454[U], 2014 WL 4958194 [App.Term, 9th & 10th Jud.Dists.2014]; People v. Morgan, 30 Misc.3d 52, 54, 917 N.Y.S.2d 804 [App.Term, 9th & 10th Jud.Dists.2010] ). Although it is not known if the Criminal Court required the transcripts of the trial testimony to reach its verdict, and if so, the time required to obtain them, the court was required to resolve sharply conflicting testimony among the 13 witnesses called by the People and the defense, and to decide whether the evidence presented in over 1,200 pages of testimony and numerous exhibits supported convictions of 12 charges. On this record, when the verdict period is properly measured from the conclusion of summations (CPL 1.2011; People v. Robinson, 203 A.D.2d 491, 492, 610 N.Y.S.2d 591 1994 ), it cannot be said that defendant was denied her right to a timely verdict (see e.g. People v. Santana, 232 A.D.2d at 663, 663 N.Y.S.2d 610 113–day delay not unreasonable given, among other things, “the volumes of transcripts” and videotape exhibits; People v. Francis, 189 A.D.2d at 823, 592 N.Y.S.2d 448 82–day delay not excessive where the court was required to reconcile the conflicting testimony of seven witnesses, and defendant was not in custody ).
We find, however, that the convictions of attempted assault in the third degree and of menacing in the third degree are against the weight of the evidence (see CPL 470.155; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 2007; see also People v. Delamota, 18 N.Y.3d 107, 115, 936 N.Y.S.2d 614, 960 N.E.2d 383 2011 [weight of the evidence review is “governed by a legal standard that is far broader than the one employed in a (legal) sufficiency analysis”] ). These charges arose from an incident when Rabbi Halberstam and defendant confronted each other at the common entrance to the building in which they both resided, which ended with defendant abruptly shutting the door as the complainant was attempting entry, resulting in a cut to the complainant's lip. Absent a confession or some similar evidence, intent is generally to be inferred from the defendant's conduct and the surrounding circumstances (People v. Rodriguez, 17 N.Y.3d 486, 489, 933 N.Y.S.2d 631, 957 N.E.2d 1133 2011; People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 1977 ), and an appellate court may “presume,” where the evidence so merits, that the defendant “intended the natural consequences of his [or her] acts” (People v. Thomas, 50 N.Y.2d 467, 472 n., 407 N.E.2d 430 1980; see also People v. Getch, 50 N.Y.2d 456, 465, 429 N.Y.S.2d 579, 407 N.E.2d 425 1980 ). While defendant may have behaved recklessly in that she knowingly created a risk of physical harm to the complainant by precipitously closing the door when he was standing so near, it cannot be said that striking someone in the face with a door while closing it is the “natural consequence” of such an act unless the facts support an inference that defendant was aware that, by closing the door in the fashion to which Rabbi Halberstam testified, she would strike him (People v. Cherry, 104 A.D.3d 468, 469, 961 N.Y.S.2d 380 2013 [facts must establish an “intent to injure” to support a charge of attempted assault in the third degree] ). In our view, an inference that defendant was aware that the complainant was so far into the doorway that the act of closing it can only be construed as an attempt to cause the complainant physical injury is contrary to the weight of the credible evidence.
An element of the offense of menacing in the third degree is the intent to place or attempt to place another in fear of physical injury. A “physical menac[ing]” is not committed on every occasion that a victim is aware that someone is attempting to, or does in fact, injure him. The gravamen of the offense is a threat and the resulting fear, and where, as here, there is no credible “evidence of any threatening behavior before, after, or otherwise separate from the sudden attack,” the guilty verdict of menacing in the third degree was likewise against the weight of the evidence (Matter of Shenay W., 68 A.D.3d 576, 576, 891 N.Y.S.2d 67 2009; see also Matter of Angel C., 93 A.D.3d 602, 603, 941 N.Y.S.2d 561 2012 [“the menacing charge was not established in that there was no evidence of any threatening behavior separate from the assault”] ).
We also reverse the convictions of both counts of criminal trespass in the third degree as against the weight of the evidence in that we do not find that sufficient, credible evidence was adduced to support the guilty verdict with respect to these two counts (see People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1).
We find, however, that the conviction of harassment in the second degree was not against the weight of the evidence. The proof supports an inference that defendant, at the very least, intended to annoy Rabbi Halberstam by preventing him from entering his home, that is, by physically thrusting him from the doorway, without regard to whether she intended (or attempted) to cause him physical injury by doing so. “[P]etty 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, 725 N.Y.S.2d 589, 749 N.E.2d 158 2001 ). It is noted that there is nothing inconsistent with respect to a conviction of harassment in the second degree and an acquittal of attempted assault in the third degree (People v. Crandon, 15 Misc.3d 130[A], 2007 N.Y. Slip Op. 50659[U], 2007 WL 986997 [App.Term, 2d & 11th Jud.Dists.2007] ). We decline defendant's invitation that we vacate the conviction in the interest of justice (see CPL 470.153[c] ). The record does not compel an inference that “guilt has not been satisfactorily established [and] that there is a grave risk that an innocent [person] has been convicted” (People v. Kidd, 76 A.D.2d 665, 668, 431 N.Y.S.2d 542 1980; see also People v. Carter, 63 N.Y.2d 530, 536, 483 N.Y.S.2d 654, 473 N.E.2d 6 1984; People v. Gioeli, 288 A.D.2d 488, 489, 733 N.Y.S.2d 242 2001; People v. Crudup, 100 A.D.2d 938, 939, 474 N.Y.S.2d 827 1984 ). The authority to dismiss a charge in the interest of justice is exercised “sparingly” ( People v. White, 75 A.D.3d 109, 125, 901 N.Y.S.2d 346 2010 ), and, upon a review of “the totality of the circumstances presented” (People v. Canner, 2002 N.Y. Slip Op. 50527[U], *2, 2002 WL 31995667 [App.Term, 9th & 10th Jud.Dists.2002] ), we find that it should not be exercised here.
We have considered defendant's remaining contentions and find them to be unpreserved or without merit (see CPL 200.202[b], [c]; People v. Stultz, 2 N.Y.3d 277, 282, 778 N.Y.S.2d 431, 810 N.E.2d 883 2004; People v. Henry, 95 N.Y.2d 563, 566, 721 N.Y.S.2d 577, 744 N.E.2d 112 2000; People v. Benevento, 91 N.Y.2d 708, 714, 674 N.Y.S.2d 629, 697 N.E.2d 584 1998; People v. Comer, 73 N.Y.2d 955, 540 N.Y.S.2d 997, 538 N.E.2d 349 1989; People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885 1981; People ex rel. Ortiz v. Commissioner of N.Y. City Dept. of Correction, 253 A.D.2d 688, 689, 678 N.Y.S.2d 91 1998, affd. 93 N.Y.2d 959, 694 N.Y.S.2d 340, 716 N.E.2d 175 1999; People v. Williams, 123 A.D.3d 1152, 1153, 997 N.Y.S.2d 499 2014; People v. Oliphant, 117 A.D.3d 1085, 1086, 986 N.Y.S.2d 600 2014; People v. Cariola, 276 A.D.2d 800, 800, 715 N.Y.S.2d 162 2000; People v. Minor, 144 Misc.2d 846, 848, 549 N.Y.S.2d 897 [App.Term, 2d & 11th Jud.Dists.1989] ).
Accordingly, the judgment of conviction is modified by vacating the convictions of attempted assault in the third degree, menacing in the third degree, and two counts of criminal trespass in third degree, and by providing that the counts of the accusatory instrument charging these offenses are dismissed.
ALIOTTA, J.P., SOLOMON and ELLIOT, JJ., concur.