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People v. Hosue

Supreme Court of New York, Second Department

May 2, 2017

The People of the State of New York, Respondent,
v.
Winston Hosue, Appellant.

          PRESENT:: PESCE, P.J., WESTON and ALIOTTA, JJ.

         Appeal 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.

         ORDERED 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.

         Defendant was initially charged in a misdemeanor complaint dated August 5, 2012, with assault in the third degree (Penal Law § 120.00 [1]), 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 [1]). 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 [1]). 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.

         At a 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.

         The 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 against him.

         Defendant 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.

         At the 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.

         After 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.

         As 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 [2]; People v Finch, 23 N.Y.3d 408, 414-416 [2014]; People v Gray, 86 N.Y.2d 10, 19 [1995]; People v Brown, 135 A.D.3d 870');">135 A.D.3d 870 [2016]; 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 [1983]), 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 [2011]; People v Mollaie, 81 A.D.3d 1448, 1449 [2011]; 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]).

         In conducting an independent review of the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348 [2007]), 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 [2006]; People v Mateo, 2 N.Y.3d 383');">2 N.Y.3d 383 [2004]; People v Bleakley, 69 N.Y.2d 490, 495 [1987]; People v Zephyrin, 52 A.D.3d 543');">52 A.D.3d 543 [2008]). Here, we find that the verdict of guilt of harassment in the second degree was not against the weight of the evidence.

         Defendant, citing People v Johnson (95 N.Y.2d 368, 372 [2000]), 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.

         In 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 [2000]), People v Brooks (270 A.D.2d 206');">270 A.D.2d 206 [2000]) and People v Parr (155 A.D.2d 945');">155 A.D.2d 945 [1989]), 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]).

         In the 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 ...


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