SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department
December 27, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the District Court of Nassau County, First District (Rhonda E. Fischer, J.), rendered May 27, 2010.
People v Gallagher (John)
Decided on December 27, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: MOLIA, J.P., TANENBAUM and LaCAVA, JJ
The judgment convicted defendant, after a non-jury trial, of harassment in the second degree.
ORDERED that the judgment of conviction is reversed, on the law, the accusatory instrument is dismissed, and the fine, if paid, is remitted.
Viewing the evidence in the light most favorable to the prosecution (People v Contes, 60 NY2d 620 ), we find it legally insufficient to establish defendant's guilt of harassment in the second degree (Penal Law § 240.26 ) beyond a reasonable doubt.
At a non-jury trial, the complainant testified that after defendant, her father, had verbally threatened to harm several individuals who had "crossed him," including the complainant's mother, defendant had called the complainant on her cellphone, later in the day, and had told her that she had "crossed him the most" and that her life would "dramatically change." Immediately thereafter, defendant had informed the complainant that she would not receive any money from his life insurance policy when he died.
The People's case hinges on the drawing of an inference that after defendant had verbally threatened to harm several people who had "crossed him," he had also implicitly threatened the complainant when, hours later, he had used the same language to convey that she had "crossed him the most." This supposition is belied by the fact that, immediately after defendant had told the complainant that she had "crossed him the most," he had informed her that her life would drastically change because she would apparently no longer be the beneficiary of his life insurance policy. Further, the temporal connection between defendant's threatening remarks concerning other individuals and his comments to the complainant on her cellphone, later that day, are too attenuated to establish an inference that defendant implicitly threatened the complainant when he told her that she had "crossed him the most." Most importantly, the complainant attested to the fact that defendant had never said he was going to shoot her or physically harm her in any way. Thus, the proof at trial was legally insufficient to demonstrate that defendant had threatened to physically harm the complainant (see Penal Law § 240.26 ; see also Matter of Czop v Czop, 21 AD3d 958, 959 ; Matter of Jessica C. v Esteban B., 13 AD3d 183 ; Yvette H. v Michael G., 270 AD2d 123 ; People v Sylla, 7 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2005]; cf. People v Ruggerio, 4 Misc 3d 133[A], 2004 NY Slip Op 50747[U] [App Term, 9th & 10th Jud Dists 2004]).
Accordingly, defendant's conviction of harassment in the second degree is reversed and the accusatory instrument is dismissed. In light of our decision, we decline to reach defendant's remaining contentions.
Molia, J.P., Tanenbaum and LaCava, JJ., concur.
Decision Date: December 27, 2011
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