Summary
holding that spoken accusation of crime, leveled against police officer in a public place, together with technical battery of placing finger on officer's chest and then reaching for the police officer's pocket was enough to support conviction for harassment in the second degree
Summary of this case from Sullivan v. GagnierOpinion
January 29, 1971
Appeal from the Criminal Court of the City of New York, County of New York, WALTER BAYER, J.
Frederick Siegmund for appellant.
Frank S. Hogan, District Attorney ( William C. Donnino of counsel), for respondent.
The trial court's implicit acceptance of the police officer's testimony supports a finding that defendant's spoken accusation of crime, levelled against the police officer in a public place, together with the technical battery of placing his finger on the officer's chest and then reaching for the police officer's pocket, evinced an intention and constituted an attempt to carry out an unlawful citizen search (if not seizure) by force of the person of the police officer, albeit not in violation of a constitutionally protected right. Whether these rapidly unfolding acts of defendant be regarded as a course of conduct under subdivision 5 of section 240.25 Penal of the Penal Law, as specifically enumerated in the information, or a "petty battery and attempted battery" such as subdivision 1 of section 240.25 was designed to cover (see Practice Commentary, McKinney's Cons. Laws of N.Y., Book 39, Penal Law, § 240.25, p. 159) is immaterial ( People v. Todaro, 26 N.Y.2d 325; People v. Love, 306 N.Y. 18; People v. Jacoby, 304 N.Y. 33; People v. Adler, 174 App. Div. 301). There can be no doubt that such conduct supports an inference of intent to harass, annoy or alarm and subjected, or was an attempt to subject, the police officer to offensive physical contact and did in fact alarm or seriously annoy the police officer to no lawful purpose.
On the record there is adequate credible evidence to support the trial court's finding of guilt of violation of section 240.25 Penal of the Penal Law under the first or fifth subdivision of that section, or both, as concisely and substantially factualized in the information.
The judgment of conviction should be affirmed.
Concur — QUINN, J.P., and GOLD, J.; MARKOWITZ, J., concurs in the result upon the constraint of People v. Todaro ( 26 N.Y.2d 325) and People v. Carcel ( 3 N.Y.2d 327).
Judgment affirmed.