        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

201
KA 10-01906
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FAISAL MOLLAIE, DEFENDANT-APPELLANT.


HOGAN WILLIG, AMHERST (GEFFREY GISMONDI OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered December 3, 2009. The judgment convicted
defendant, upon a nonjury verdict, of harassment in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
after a nonjury trial, of harassment in the second degree (Penal Law
§ 240.26 [1]). Defendant failed to preserve for our review his
contention that the conviction is not supported by legally sufficient
evidence (see People v Gray, 86 NY2d 10, 19). In any event, we reject
that contention. The People presented the testimony of the victim
that defendant attempted to strike her with a closed fist, followed
her throughout their apartment, grabbed her repeatedly, and knocked
her to the ground. In addition, they presented the testimony of a
police officer who stated that he observed that the victim was
bleeding and bruised immediately after the incident. That testimony
is legally sufficient to establish that defendant, acting “with intent
to harass, annoy or alarm [the victim,] . . . subject[ed her] . . . to
physical contact, or attempt[ed] or threaten[ed]” to do so (§ 240.26
[1]; see generally People v Bleakley, 69 NY2d 490, 495). It is well
settled that a “defendant may be presumed to intend the natural and
probable consequences of his [or her] actions . . ., and [that] intent
may be inferred from the totality of conduct of the accused” (People v
Mahoney, 6 AD3d 1104, 1104, lv denied 3 NY3d 660 [internal citations
and quotation marks omitted]; see People v Roman, 13 AD3d 1115, 1116,
lv denied 4 NY3d 802). Moreover, viewing the evidence in light of the
elements of the crime in this nonjury trial (see People v Danielson, 9
NY3d 342, 349), we conclude that the verdict is not against the weight
of the evidence (see generally Bleakley, 69 NY2d at 495).
                                 -2-                           201
                                                         KA 10-01906

     We have considered defendant’s remaining contentions and conclude
that they are without merit.

     All concur except SCONIERS, J., who dissents and votes to reverse
in accordance with the following Memorandum: I agree with my
colleagues that defendant failed to preserve for our review his
contention that the conviction of harassment in the second degree
(Penal Law § 240.26 [1]) is not supported by legally sufficient
evidence. Nevertheless, I respectfully dissent inasmuch as I agree
with defendant that the evidence is in fact legally insufficient to
support the conviction (see generally People v Bleakley, 69 NY2d 490,
495), and in my view we should exercise our discretion to reach
defendant’s contention in the interest of justice and reverse the
judgment (see CPL 470.15 [6] [a]). “A person is guilty of harassment
in the second degree when, with intent to harass, annoy or alarm
another person . . . [h]e or she strikes, shoves, kicks or otherwise
subjects such other person to physical contact, or attempts or
threatens to do the same” (Penal Law § 240.26 [1]). Here, the
evidence established that, while defendant was in his apartment
talking to a third party on his cellular telephone, his wife
(complainant), grabbed the phone from his hand and ran away. As a
result, defendant chased the complainant throughout the apartment and
repeatedly asked her to return the phone. The complainant testified
that, during the chase, defendant pushed her on the shoulder and
grabbed her arm. Both defendant and the complainant testified
consistently that, throughout this incident, defendant repeatedly
asked the complainant to return his phone and did not utter any
threats. Rather, he merely insisted that the phone be returned.
Thus, while the evidence established that defendant intended to
retrieve his phone from the complainant, it is insufficient to support
the conclusion that he had the requisite “intent to harass, annoy or
alarm another person” (§ 240.26). Therefore, the proof of intent is
insufficient to support the conviction of harassment in the second
degree (see generally Matter of Anthony J. v David K., 70 AD3d 1220,
1221; Matter of Lewis v Robinson, 41 AD3d 996, 997).




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
