PEOPLE, res, v. HUBERT FELDER, def-ap

3383. PEOPLE, res, v. HUBERT FELDER, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Brittany N. Francis of counsel), for ap — Darcel D. Clark, District Attorney, Bronx (Marianne Stracquadanio of counsel), for res — Judgment, Supreme Court, Bronx County (Seth L. Marvin, J.), rendered February 9, 2015, as amended February 13, 2015, convicting him, after a nonjury trial, of attempted forcible touching, sexual abuse in the third degree, and two counts of harassment in the second degree, and sentencing him to an aggregate term of three months, unanimously modified, on the facts, to the extent of vacating the harassment conviction with respect to complainant A.R., and dismissing that count of the information, and otherwise affirmed.

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3383. PEOPLE, res, v. HUBERT FELDER, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Brittany N. Francis of counsel), for ap — Darcel D. Clark, District Attorney, Bronx (Marianne Stracquadanio of counsel), for res — Judgment, Supreme Court, Bronx County (Seth L. Marvin, J.), rendered February 9, 2015, as amended February 13, 2015, convicting him, after a nonjury trial, of attempted forcible touching, sexual abuse in the third degree, and two counts of harassment in the second degree, and sentencing him to an aggregate term of three months, unanimously modified, on the facts, to the extent of vacating the harassment conviction with respect to complainant A.R., and dismissing that count of the information, and otherwise affirmed.

Except as indicated, the verdict was not against the weight of the evidence. There is no basis for disturbing the court’s determinations concerning credibility and identification. However, in performing elements-based review regarding the weight of the evidence (see People v. Danielson, 9 NY3d 342, 349 [2007]), we find that complainant A.R.’s testimony that defendant apparently mistook her for someone else, and “grazed” her arm, from her mid-shoulder to her hand, after which she walked away, did not support an inference that defendant intended to harass, annoy or alarm her (see Penal Law §240.26[1]; People v. Bracey, 41 NY2d 296, 301 [1977]).

PEOPLE, res, v. HUBERT FELDER, def-ap

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