Opinion
JJ 2007-1048 K CR.
Decided on May 11, 2009.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Kenneth Holder, J.), rendered June 18, 2007. The judgment convicted defendant, upon a jury verdict, of assault in the third degree and harassment in the second degree.
Judgment of conviction reversed, as a matter of discretion in the interest of justice, and matter remitted to the Criminal Court for a new trial.
PRESENT: WESTON, J.P., GOLIA and STEINHARDT.
As the result of an encounter between defendant and a school dean that took place at defendant's son's elementary school, defendant was charged with assault in the third degree (Penal Law § 120.00), harassment in the second degree (Penal Law § 240.26), and menacing in the third degree (Penal Law § 120.15). After a jury trial, defendant was convicted of assault and harassment, but acquitted of menacing.
Defendant argues that an error in the court's Molineux charge deprived her of a fair trial ( People v Molineux, 168 NY 264). Although this claim is not preserved, we reverse defendant's conviction in the interest of justice because we agree with her that, in the context of the credibility contest that the case presented, she did not receive a fair trial.
The court charged the jury, as part of its Molineux charge, thus:
"There is evidence in this case, that on another occasion or occasions, the defendant engaged in criminal conduct, with respect to [the complaining witness] and other staff members of the school."
There was no evidence that defendant had engaged in prior criminal conduct. In light of the differences in the witnesses' testimony, this charge was patently unfair and prejudicial ( see People v Tuthill, ___ Misc 3d ___, 2009 NY Slip Op 29150 [App Term, 9th 10th Jud Dists 2009]).
In view of the foregoing, we do not reach defendant's remaining contention.
Accordingly, the judgment of conviction is reversed and the matter remitted for a new trial.
Weston, J.P., Golia and Steinhardt, JJ., concur.