PEOPLE v. DUBLINO (2019)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a nonjury verdict of harassment in the second degree (Penal Law § 240.26 [1] ).  As defendant correctly concedes, he failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ).  In any event, we reject that contention.  “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” (§ 240.26[1] ).  “The crux of section 240.26(1) is the element of physical contact:  actual, attempted or threatened” (People v. Bartkow, 96 N.Y.2d 770, 772, 725 N.Y.S.2d 589, 749 N.E.2d 158 [2001] ).  It is well established that a “defendant may be presumed to intend the natural and probable consequences of his [or her] actions ․, and [that i]ntent may be inferred from the totality of conduct of the accused” (People v. Mollaie, 81 A.D.3d 1448, 1449, 916 N.Y.S.2d 726 [4th Dept. 2011] [internal quotation marks omitted] ).  Here, the People presented evidence that, during an argument that began when the victim discovered a text message from another woman on defendant's phone, defendant grabbed the victim by the arm, shoved her to the ground, choked her, and threatened to kill her, and that defendant repeatedly threatened to physically harm and kill the victim after the initial physical altercation.  In addition, the victim's testimony and photographs established that the victim suffered bruising, scratches, and marks on her arm.  Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the evidence 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 Mollaie, 81 A.D.3d at 1449, 916 N.Y.S.2d 726;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

Contrary to defendant's further contention, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see People v. Aikey, 153 A.D.3d 1603, 1603–1604 [4th Dept. 2017], lv. denied 30 N.Y.3d 1058, 71 N.Y.S.3d 8, 94 N.E.3d 490 [2017];  Mollaie, 81 A.D.3d at 1449, 916 N.Y.S.2d 726;  see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).