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The People of the State of New York v. Donna Lankowicz

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


January 20, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
DONNA LANKOWICZ,
APPELLANT.

Appeal from a judgment of the District Court of Suffolk County, First District (Jennifer A. Henry, J.), rendered June 8, 2010.

People v Lankowicz (Donna)

Decided on January 20, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: MOLIA, J.P., NICOLAI and IANNACCI, JJ

The judgment convicted defendant, upon a jury verdict, of harassment in the second degree.

ORDERED that the judgment of conviction is affirmed.

Defendant was convicted, after a jury trial, of violating Penal Law § 240.26 (3) which provides that "[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person . . . she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose." At the close of the evidence, defendant moved to dismiss the harassment charge for failure to establish all of its elements beyond a reasonable doubt, asserting that the testimonies of the infant complainant and his mother were incredible as a matter of law. In support of this motion, defendant did not set forth any "specifically directed" argument (People v Hawkins, 11 NY3d 484, 492 [2008]; see CPL 470.05 [2]) with regard to the elements of the offense. The District Court denied the motion. We deem defendant's legal sufficiency argument unpreserved for this appeal (see People v Hawkins, 11 NY3d at 492). In any event, we find that the evidence, when viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), was legally sufficient to establish defendant's guilt beyond a reasonable doubt. The proof established that defendant's overall conduct, of which her words formed only one part, constituted harassment in the second degree in violation of Penal Law § 240.26 (3) (see People v Graziano, 11 Misc 3d 137[A], 2006 NY Slip Op 50506[U] [App Term, 9th and 10th Jud Dists 2006]; cf. People v Dietze, 75 NY2d 47 [1989]).

Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]). It is well settled that the credibility of witnesses is a question of fact, and great deference is accorded to the factfinder's credibility determinations as it had the opportunity to view the witnesses, hear their testimony and observe their demeanor (see People v Romero, 7 NY3d 633 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]).

We find defendant's other contentions to be unpreserved and/or without merit. Accordingly, the judgment of conviction is affirmed.

Molia, J.P., Nicolai and Iannacci, JJ., concur.

Decision Date: January 20, 2012

20120120

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