PRESENT:: PESCE, P.J., WESTON and ALIOTTA, JJ.
from a judgment of the Criminal Court of the City of New
York, Kings County (John T. Hecht, J.), rendered October 29,
2013. The judgment convicted defendant, after a nonjury
trial, of attempted endangering the welfare of a child and
harassment in the second degree.
that the judgment of conviction is modified, on the facts, by
vacating the conviction of attempted endangering the welfare
of a child and dismissing the count of the accusatory
instrument charging that offense; as so modified, the
judgment of conviction is affirmed.
was initially charged in a misdemeanor complaint dated August
5, 2012, with assault in the third degree (Penal Law §
120.00 ), criminal obstruction of breathing or blood
circulation (Penal Law § 121.11 [a]), menacing in the
third degree (Penal Law § 120.15), and harassment in the
second degree (Penal Law § 240.26 ). Defendant was
arraigned on August 5, 2012. A superseding accusatory
instrument dated August 13, 2012, added the charge of
endangering the welfare of a child (Penal Law § 260.10
). Thereafter, the Criminal Court, on consent of the
People, reduced the charges of assault in the third degree,
criminal obstruction of breathing and blood circulation, and
endangering the welfare of a child, to attempts to commit
those three crimes. The court subsequently dismissed the
charge of attempted criminal obstruction of breathing and
blood circulation, also on consent of the People.
nonjury trial, the People elicited evidence that the
complainant and defendant were married and, although
estranged, they lived in the same apartment with their
seven-year-old daughter. On the evening of August 4, 2012,
the complainant allowed her daughter to play in a park near
her Brooklyn apartment building. The complainant asked a
friend to watch her daughter while the complainant spoke to
her boyfriend, who had arrived at the location in his car.
Shortly thereafter, defendant went into the park, took his
daughter, and walked toward the building. According to the
complainant, her daughter did not want to go into the
building. An argument ensued between defendant and the
complainant. The complainant testified that while both she
and defendant had been holding onto their daughter, defendant
shoved the complainant. Defendant's hand hit the
complainant's neck, causing her to fall to the ground.
complainant stated that she had sustained injuries, including
a sprained ankle, and that she had then called the police.
Her daughter had been present during the entire altercation.
The complainant's boyfriend presented testimony
essentially corroborating the complainant's testimony.
However, the Criminal Court agreed to draw an adverse
inference with regard to the boyfriend's testimony
because the People had failed to timely inform the defense
that the boyfriend had an outstanding criminal charge pending
and his daughter testified, among other things, that the
complainant lost her balance and fell because she had been
wearing four-inch high heels. Defendant also testified that
the complainant had attempted to strike him, and that he had
blocked her attempt to do so with his hand.
close of all of the evidence, defendant moved for a trial
order of dismissal with respect to the attempted endangering
the welfare of a child charge. He did not move to dismiss the
charge of harassment in the second degree.
trial, defendant was found guilty of attempted endangering
the welfare of a child and harassment in the second degree.
He was found not guilty of attempted assault in the third
degree and menacing in the third degree. On appeal, defendant
contends that the evidence was legally insufficient to
establish his guilt and that the verdict of guilt was against
the weight of the evidence. He argues that the evidence of
attempted endangering the welfare of a child was insufficient
because his daughter did not observe "serious domestic
violence." Defendant also contends that he was denied
the effective assistance of counsel because his counsel had
failed to move to dismiss the attempted endangering the
welfare of a child charge on statutory speedy trial grounds.
defendant only moved to dismiss the charge of attempted
endangering the welfare of a child, defendant's legal
sufficiency claim is unpreserved for appellate review with
respect to the charge of harassment in the second degree
(see CPL 470.05 ; People v Finch, 23
N.Y.3d 408, 414-416 ; People v Gray, 86 N.Y.2d
10, 19 ; People v Brown, 135 A.D.3d 870');">135 A.D.3d 870
; People v Ballard, 46 Misc.3d 145');">46 Misc.3d 145 [A], 2015
NY Slip Op 50210[U] [App Term, 2d Dept, 2d, 11th & 13th
Jud Dists 2015]; People v Shannon, 42 Misc.3d
127[A], 2013 NY Slip Op 52144[U] [App Term, 2d Dept, 2d, 11th
& 13th Jud Dists 2013]). In any event, viewing the
evidence in the light most favorable to the prosecution
(see People v Contes, 60 N.Y.2d 620, 621 ), we
find that defendant's guilt of harassment in the second
degree was supported by legally sufficient evidence (see
People v Rodriguez, 17 N.Y.3d 486, 489 ;
People v Mollaie, 81 A.D.3d 1448, 1449 ;
People v Smith, 47 Misc.3d 153');">47 Misc.3d 153 [A], 2015 NY Slip Op
50816[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015];
People v Shehabeldin, 39 Misc.3d 149[A], 2013 NY
Slip Op 50942[U] [App Term, 2d Dept, 2d, 11th & 13th Jud
Dists 2013]; People v Williams, 38 Misc.3d 4, 9 [App
Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
conducting an independent review of the weight of the
evidence (see People v Danielson, 9 N.Y.3d 342, 348
), this court accords great deference to the
factfinder's opportunity to view the witnesses, hear
their testimony, and observe their demeanor. This court must
weigh the relative probative force of conflicting testimony
and the relative strength of conflicting inferences that may
be drawn from the testimony. We must then determine, based on
the credible evidence, whether a different result would have
been unreasonable (see People v Lane, 7 N.Y.3d 888,
890 ; People v Mateo, 2 N.Y.3d 383');">2 N.Y.3d 383 ;
People v Bleakley, 69 N.Y.2d 490, 495 ;
People v Zephyrin, 52 A.D.3d 543');">52 A.D.3d 543 ). Here, we
find that the verdict of guilt of harassment in the second
degree was not against the weight of the evidence.
citing People v Johnson (95 N.Y.2d 368, 372 ),
essentially claims that he was only found guilty of a single
push of the complainant in the presence of their daughter,
that such conduct does not rise to the level of a
"significant" act of domestic violence witnessed by
the child, and that only a significant act of domestic
violence can support a conviction of attempted endangering
the welfare of a child.
Johnson (95 N.Y.2d at 373), the Court of Appeals,
citing to three Appellate Division cases, People v
West (271 A.D.2d 806, 809 ), People v
Brooks (270 A.D.2d 206');">270 A.D.2d 206 ) and People v
Parr (155 A.D.2d 945');">155 A.D.2d 945 ), stated that those cases
all held "that a defendant who performs a significant
act of domestic violence against a mother in the presence of
a child is guilty of endangering the welfare of that
child." The Court of Appeals has never specifically
defined what a "significant act of domestic violence
is" (see People v Heberle, 46 Misc.3d 1218');">46 Misc.3d 1218 [A],
2015 NY Slip Op 50112[U], *1 [Crim Ct, NY County 2015]).
case at bar, the duration of the incident appears to have
been short, and it was a single act. There was no evidence of
a history of domestic violence between the parties. The court
dismissed the charge of attempted criminal obstruction of
breathing and blood circulation and found defendant not
guilty of attempted assault in the third degree and menacing
in the third degree. Thus, while the evidence may have
established that defendant pushed his wife to the ground, we
find, under the totality of ...