Opinion
2007-629 W CR, 2007-630 W CR, 2007-631 W CR, 2007-632 W CR.
Decided on May 11, 2009.
Appeals from judgments of the City Court of Yonkers, Westchester County (Robert C. Cerrato, J.), rendered March 5, 2007. The judgments convicted defendants, after a joint nonjury trial, of harassment in the second degree.
On the court's own motion, appeals consolidated for purposes of disposition.
Judgments of conviction affirmed.
PRESENT: RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ.
The superseding misdemeanor information charged five counts against each of the four defendants. Counts one and two charged defendants with menacing in the second degree (Penal Law § 120.14); count three charged defendants with assault in the third degree (Penal Law § 120.00), and counts four and five charged defendants with harassment in the second degree (Penal Law § 240.26). The factual portion of the accusatory instrument contained but one paragraph of factual allegations.
At trial, Ahmed Mohamed testified that defendant Anwar Molhi squeezed his hands around Mohamed's neck in an effort to choke him and that the remaining defendants told Mohamed that they would kill him. After trial, defendants were found guilty of count five, harassment in the second degree, and were acquitted of the other four counts.
On appeal, defendants contend that the information was jurisdictionally defective and should be dismissed. They argue that the factual allegations contained in the information do not distinguish the facts which support the fourth count, harassment in the second degree, of which they were acquitted, from the facts which support the fifth count, which also charged defendants with harassment in the second degree. Thus, they claim, it is impossible to determine which acts, constituting harassment in the second degree, they were found guilty of committing. Defendants further contend that the People failed to establish their guilt beyond a reasonable doubt. In addition, they argue that the verdict was repugnant because they were acquitted of one count of harassment in the second degree.
As noted, the factual portion of the accusatory instrument sets forth all the factual allegations in one paragraph (CPL 100.15). The fourth and fifth counts, charging defendants with harassment in the second degree, correspond, respectively, to the following factual allegations set forth in the last two sentences of the information: "The defendants . . . with intent to harass, annoy and alarm Mr. Ahmed Mohamed did cause injury when defendant Nasser [ sic] struck him about the arm with a baseball bat which caused substantial pain to the area. The defendants with intent to harass, annoy and alarm Mr. Ahmed Mohamed caused him to feel harassed, annoyed and alarmed when defendant Molhi stood behind him and placed his hands around Mr. Mohamed's neck and squeezed his hands against his neck in an effort to choke him." It is thus clear that the final sentence of the factual portion, when taken together with the paragraph's opening sentence, charged defendants with count five, harassment in the second degree, to wit, defendant Molhi did choke Ahmed Mohamed, and the other defendants aided, abetted and acted in concert with Molhi by threatening Ahmed Mohamed.
A person is guilty of harassment in the second degree when, "with intent to harass, annoy or alarm another person, he strikes shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same" (Penal Law § 240.26).
Section 100.40 (1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms to the requirements of CPL 100.15, the factual allegations thereof (together with those of any supporting depositions which may accompany it) provide reasonable cause to believe that the defendant committed the offenses charged in the accusatory part of the information, and the non-hearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offenses charged and defendant's commission thereof. The law does not require that the most precise words or phrases which most clearly express the thought be provided in an information, but only that the crime be alleged and the specifics set forth so that a defendant can prepare himself for trial, and so that he will not be tried again for the same offense ( People v Zambounis, 251 NY 94). The failure to comply with this requirement is a nonwaivable jurisdictional defect ( People v Alejandro, 70 NY2d 133), with the exception of the non-hearsay requirement which is deemed waived absent a pretrial motion ( see People v Casey, 95 NY2d 354) or upon a plea of guilty ( People v Pittman, 100 NY2d 114, 122). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" ( Casey, 95 NY2d at 360).
Contrary to defendants' contention, the factual allegations contained in the factual portion of the accusatory instrument ( see CPL 100.15) relating to the fifth count charging defendants with harassment in the second degree as set forth in the accusatory instrument are more than sufficient to allege the elements of said offense. An accusatory instrument must be construed on its four corners ( People v Thomas, 4 NY3d 143, 146), and its sufficiency is not undermined by contrary findings of fact made in a subsequent stage of the action ( see People v Gordon, 88 NY2d 92, 96). We further find that the factual allegations relating to the fifth count of the accusatory instrument are not confusing, amply provide defendants with notice sufficient to prepare a defenseand are adequately detailed to prevent defendants from being tried twice for the same offense.
To the extent that defendants argue that the evidence was legally insufficient, the issue was not preserved for appellate review ( People v Hines, 97 NY2d 56). In any event, the evidence adduced at trial was legally sufficient to establish defendants' guilt of the fifth count charging defendant with harassment in the second degree beyond a reasonable doubt. At trial, Ahmed Mohamed testified that defendant Anwar Molhi squeezed his hands around Mohamed's neck in an effort to choke him and that the remaining defendants, who were present at the time, told Ahmed Mohamed that they would kill him. To the extent defendants contend that the verdict is against the weight of the evidence, we note that the issue presented involves the credibility of the witnesses, and the resolution thereof, as well as the weight to be accorded the evidence, is primarily a question to be determined by the trier of fact, which saw and heard the witnesses ( see People v Romero, 7 NY3d 633, 644-645). The determination by the trier of fact should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the evidence ( see People v Garafolo, 44 AD2d 86, 88). Upon our factual review power (CPL 470.15), we find that the verdict was not against the weight of the evidence ( see People v Danielson, 9 NY3d 342). Although defendants offered testimony denying that they were present during the alleged incident, we are not persuaded this testimony renders the trial court's credibility assessment against the weight of the evidence.
We likewise find no merit to defendants' repugnant-verdict argument. It is evident that defendants were charged with two counts of harassment in the second degree under separate scenarios or theories, and, upon finding defendant guilty of one of the two counts, the court clearly accepted one scenario and rejected the other ( see People v Neer, 136 AD2d 801, 802).
Rudolph, P.J., Molia and Scheinkman, JJ., concur.