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People v. Nasca

Supreme Court of New York, Second Department

September 17, 2013

The People of the State of New York, Respondent,
v.
Dean Nasca, Appellant.

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

Appeal from a judgment of the District Court of Suffolk County, First District (Jennifer A. Henry, J.), rendered February 8, 2012. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree and sentenced him to a three-day term of incarceration, with an alternative of completing 14 hours of community service, and a $120 surcharge.

ORDERED that the judgment of conviction is modified, as a matter of discretion in the interest of justice, by deleting the portion of the sentence imposing a three-day term of incarceration with an alternative of completing 14 hours of community service; as so modified, the judgment of conviction is affirmed.

Defendant was charged with harassment in the second degree (Penal Law § 240.26 [3]). According to the accusatory instrument, "on or about January 18, 2011, at approximately 9:10 a.m., " defendant repeatedly yelled and screamed at the complainant while she was working as a crossing guard in front of an elementary school. Furthermore, "[o]n previous occasions, " in addition to yelling obscenities at the complainant, defendant had "stuck his middle finger towards" her. At a nonjury trial, the complainant was permitted to testify, over defendant's objection, as to five incidents that had occurred between December 22, 2009 and January 4, 2011, before testifying as to the events of January 18, 2011. On appeal, defendant argues, among other things, that the accusatory instrument was facially insufficient and that the verdict was against the weight of the evidence.

Pursuant to Penal Law § 240.26 (3), "[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person... [h]e or 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." We find that the accusatory instrument sufficiently alleged a course of conduct by defendant, with the requisite intent, "on or about January 18, 2011, at approximately 9:10 a.m., " which alarmed or seriously annoyed the complainant and which served no legitimate purpose (see People v Curko, 34 Misc.3d 159 [A], 2012 NY Slip Op 50444[U] [App Term, 9th & 10th Jud Dists 2012]). However, while the accusatory instrument also included allegations regarding defendant's behavior "on previous occasions, " it failed to set forth a time period during which those "previous" incidents had occurred. Consequently, the accusatory instrument cannot support a conviction of violating Penal Law § 240.26 (3) based, in whole or in part, on trial testimony concerning events which did not occur "on or about January 18, 2011, at approximately 9:10 a.m." (see generally People v Watt, 81 N.Y.2d 772 [1993]; People v Rozario, 20 Misc.3d 76, 80 [App Term, 9th & 10th Jud Dists 2008]).

In view of the foregoing, in determining whether the verdict was against the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 N.Y.3d 342 [2007]), we consider only the testimony regarding the events of January 18, 2011 and find that the complainant's testimony sufficiently established that, on that date, defendant had, with the requisite intent, engaged in "a course of conduct" which constituted harassment in the second degree under Penal Law § 240.26 (3) (see People v Curko, 34 Misc.3d 159 [A], 2012 NY Slip Op 50444[U]). However, as a matter of discretion in the interest of justice, we modify the judgment of conviction by deleting the portion of the sentence which imposed a three-day term of incarceration with an alternative of completing 14 hours of community service.

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


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