SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
July 7, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
RAFAEL A. MUOJO, III,
Appeal from a judgment of the District Court of Nassau County, First District (William J. O'Brien, J.), rendered November 2, 2009. The judgment convicted defendant, after a non-jury trial, of harassment in the second degree.
People v Muojo (Rafael)
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on July 7, 2011
PRESENT: IANNACCI, J.P., NICOLAI and MOLIA, JJ
ORDERED that the judgment of conviction is affirmed.
Defendant was charged with harassment in the second degree (Penal Law § 240.26 ). At a non-jury trial, the complainant and another witness for the People testified that, on the day of the incident, defendant had approached them and their friends while they had been riding their bicycles on cement structures in the park area of the Levittown Public Library. Defendant directed them to leave, and, shortly thereafter, they decided to ride their bicycles to a nearby ski shop. When they were riding near Hempstead Turnpike, defendant jumped out from behind a fence and struck the complainant's left cheek. Defendant testified that he had approached a group riding bicycles in the park area and had told them to leave. He confirmed that he had subsequently encountered the boys while he was walking near Hempstead Turnpike; however, he denied that he had touched anyone. Defendant maintained that he had believed that the kids were following him, and, as he sensed them approaching, he pivoted, said "boo" and "stop, no more" and raised his hand in a "stop motion." At the conclusion of the trial, the District Court convicted defendant of the charged offense.
On appeal, defendant claims that the People failed to establish that he acted with the requisite intent; however, this argument is unpreserved for appellate review, as no objections were made on this ground at trial (see CPL 470.05 ; People v Gray, 86 NY2d 10 ). In any event, viewing the evidence in the light most favorable to the People (People v Contes, 60 NY2d 620 ), we find that it was legally sufficient to establish defendant's intent to harass the complainant. As there is "[o]ften . . . no direct evidence of a defendant's mental state" (People v Smith, 79 NY2d 309, 315 ), intent may "be inferred from the act itself" or from the defendant's "conduct and the surrounding circumstances" (People v Bracey, 41 NY2d 296, 301 ). In light of defendant's initial approach to the complainant in the park and his subsequent acts of jumping out from behind a fence, shouting "boo" and striking the complainant, defendant's conduct and the surrounding circumstances evidenced his intent to harass the complainant, beyond a reasonable doubt (see People v Griffen, 31 Misc 3d 130[A], 2011 NY Slip Op 50574[U] [App Term, 9th & 10th Jud Dists 2011].
In conducting our independent weight of the evidence review (see CPL 470.15 ; People v Danielson, 9 NY3d 342, 348-349 ), we view the evidence in light of the elements of the crimes in this non-jury trial and accord great deference to the District's Court's opportunity to view the witnesses, hear their testimony, and observe their demeanor (People v Romero, 7 NY3d 633, 644-645 ; People v Mateo, 2 NY3d 383, 410 ; People v Bleakley, 69 NY2d 490, 495 ; People v Ramirez, 58 AD3d 757, 758 ). Defendant's contention that the testimony of the People's witness was implausible involves issues of credibility. Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the credible evidence (see People v Lane, 7 NY3d 888, 890 ; Romero, 7 NY3d at 644-645; Bleakley, 69 NY2d at 495; People v Griffen, 31 Misc 3d 130[A], 2011 NY Slip Op 50574[U]).
Accordingly, the judgment of conviction is affirmed.
Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: July 07, 2011
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