The defendant in this case is charged with one count of Criminal Trespass in the Second Degree (P.L. §140.15); one count of Criminal Possession of a Weapon in the Fourth Degree (P.L. §265.01[01]); one count of Attempted Petit Larceny (P.L. §110/155.25); one count of Harassment in the Second Degree (P.L. §240.26[01]); and one count of Unlawful Possession of Marihuana (P.L. 221.05).A bench trial in this action began on March 23, 2018, and after many adjournments, the trial was completed on August 17, 2018. The People called two witnesses: Mount Vernon Police Detective Anthony Burnett and complainant, Lawrence Gomez, who both testified credibly. Prior to presenting evidence the People withdrew the Unlawful Possession of Marihuana charge. Defendant called his former co-defendant, Sheldon Shirley to testify on his behalf.Lawrence Gomez testified that on October 15, 2016 he was at his home at 458 South 2nd Avenue in the city of Mount Vernon, County of Westchester when he heard his door bell ringing at approximately 10:30 a.m. He testified that at that time he accepted a package from a Federal Express delivery person. Although the package was in the name of Akeem Gordon, Mr. Gomez testified that he accepted the package because he believed it was for his girlfriend’s son, Nic Gordon. Shortly after receiving the package his doorbell rang again, and as he responded to the door he observed a black male standing in his foyer which is in an enclosed porch. As he opened his doors leading out to the foyer area, he testified that the black male started to walk towards the inside of his home when he told him to stop. The same male told him that Federal Express mistakenly delivered a package to his house that belonged to him, and he was there to pick up the package. Mr. Gomez asked for identification and the defendant told him he did not have identification, but showed him the tracking information of the package on his phone. Mr. Gomez told the defendant that he still needed to see his identification before he could give him the package. Mr. Gomez then testified that when he once again refused to turn over the package to the defendant, the defendant then tried to push by him to retrieve the package which was located approximately six feet away from him inside of his home. Mr. Gomez further testified that when he prevented the defendant from pushing past him, he was able to push the defendant out of the foyer and he immediately locked the front door. Mr. Gomez further testified that he did not give the defendant permission to enter the foyer area of his home.Mr. Gomez testified that after ejecting the defendant from his home he first called Federal Express to come back to his home to retrieve the package that was just delivered. He then placed a call to the Mount Vernon Police Department, whereby he informed them that a guy walked into his house, asking for a package. He told them that when he asked the gentleman for identification, the individual attempted to take the package from him and enter his home. He described the black make as an individual with a thin build, beige pants and dread locks. Shortly thereafter, he testified that he exited his home and observed the defendant being held by members of the Mount Vernon Police Department. Mr. Gomez then identified the defendant as the person that had attempted to enter the interior of his home to retrieve the Federal Express package.Detective Burnett of the Mount Vernon Police Department testified that after receiving a 911 report of this incident, he proceeded to the subject location and observed the defendant, who fit the description of the person that attempted to gain access to the complainant’s home, standing in the street near a parked vehicle. When he approached the defendant and identified himself as a police officer, Detective Burnett testified that he observed the defendant toss an item in the grassy area of the sidewalk, near where he was standing. That item, a knife, was recovered and the defendant, after being identified by the victim, was placed under arrest.Sheldon Shirley testified that on the date in question he received an early morning call from the defendant asking him to give him a ride to Mt. Vernon. Mr. Shirley testified that he left his home in Brooklyn and picked up the defendant in he Bronx. Mr. Shirley stated that he wasn’t familiar with the Mt. Vernon address so he allowed the defendant to drive his vehicle to Mt. Vernon. He further testified that they arrived in Mt. Vernon in front of the complainant’s home shortly after 9:00 a.m. Mr. Shirley stated that the defendant left the vehicle and he observed the defendant ring the door bell, and after a short time was let into the home by a white male. He then testified that the defendant came out of the home shortly thereafter, entered the vehicle and drove a short distance away from the home before stopping the vehicle and getting out to answer a phone call. Mr. Shirley then testified that while sitting in his vehicle he observed a black guy in plain clothes, with no badge displayed, pointing a gun at the defendant who was standing outside the vehicle. On cross examination, Mr. Shirley testified that he had no idea why the defendant wanted a ride to this residence in Mt. Vernon and had no conversation with the defendant regarding the Federal Express package.The video surveillance of the front of the defendant’s home was introduced into evidence and shows the Federal Express employee delivering the package at 10:16 a.m. The video then shows that at 10:25 a.m. the defendant pulls up in a white vehicle, gets out and rings the victim’s front doorbell. The defendant is seen standing outside of the home while speaking on a cell phone for approximately two minutes before opening the door and entering the screened-in porch of the victim’s home at 10:28 a.m. The defendant is then seen leaving the home at 10:31 a.m. and driving away from the residence. What transpired between the defendant and Mr. Gomez between 10:28 and 10:31 a.m. while inside the residence was not captured by the video.A person is guilty of Criminal Trespass in the Second Degree when “he or she knowingly enters or remains unlawfully in a dwelling.” PL §140.15(1). Defendant’s contention that the evidence failed to establish that he entered the dwelling unlawfully is incorrect. The owner’s testimony clearly established that defendant entered the foyer area of his screened-in porch without his permission, and when told to leave after a brief conversation, the defendant allegedly tried to enter the home to retrieve the aforementioned package. Mr. Gomez then testified that he had to push the defendant out of his home.As such, based upon the credible evidence presented, this Court finds that the trial evidence was adequate as a matter of law to prove the defendant’s guilt beyond a reasonable doubt for the crime of Criminal Trespass in the Second Degree. This legal standard requires the court to determine “whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime have been proven beyond a reasonable doubt”. (People v. Cabey, 85 NY2d 417 [1995]; People v. Wong, 81 NY2d 600 [1993]). In this regard, the Court of Appeals has noted that “the scope of a reasonable mind is broad. It’s conclusion is not always a point certain, but, upon given evidence, may be one of a number of conclusions. Both innocence and guilt beyond a reasonable doubt may fairly lie within the limits of reasonable conclusion from given facts.” (People v. Jackson, 65 NY2d 265, 271 [1985]).Count two of the accusatory instrument charges the defendant with Criminal Possession of a Weapon in the Fourth Degree. Penal Law §265.01 (1) provides that:“A person is guilty of Criminal Possession of a Weapon in the Fourth Degree when:“(1) He possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub, wristbrace type slingshot or slugshot, shirken or ‘Kung Fu’ star.”A gravity knife is defined as “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” (Penal Law §265.00 [5].) A gravity knife must have a blade which locks in place automatically upon release without any effort by the user, and cannot require a manual locking mechanism (People v. Zuniga, 303 AD2d 773, 774 [2d Dept 2003], appeal withdrawn 100 NY2d 567 [2003]). Detective Burnett testified that upon his approach of the defendant, he observed the defendant drop a knife near him. The subject knife was introduced into evidence and Detective Burnett determined and demonstrated in open court that the recovered knife opened and locked in the manner proscribed by the gravity knife statute (Mckinney’s Penal Law §§265.00(5), 265.01(1). Accordingly, the People have proven beyond a reasonable doubt that the defendant is guilty of Criminal Possession of a Weapon in the Fourth Degree.Regarding the third count, the Court concludes that the People established beyond a reasonable doubt a case of attempted petit larceny. A person is guilty of attempted petit larceny when he attempts to steal property. To constitute an attempt, an act must “carry the project forward within dangerous proximity to the criminal end to be 9/12/2018 People v. Willis (2018 NY Slip Op 51279(U)) http://www.nycourts.gov/reporter/3dseries/2018/2018_51279.htm 6/7 attained” (People v. Bracey, 41 NY2d 296, 300 [1977], quoting People v. Werblow, 241 NY 55 [1925]). The People’s proof established the defendant’s entry into the foyer of the complainant’s home, and that when told to leave, made an effort to push past the complainant to retrieve the Federal Express package that was inside the complainant’s home. This evidence was sufficient to support the conviction for attempted petit larceny as the defendant carried the project forward within dangerous proximity to the criminal end to be attained, since his activities placed it within his power to commit the offense unless interrupted (People v. Joseph, 58 Misc 3d 61 [App. Term, Second Dept., 2017]).The final count charges the defendant with Harassment in the Second Degree.A person is guilty of Harassment in the Second Degree when, with intent to harass, annoy or alarm another person: he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same. P.L. §240.26(1). Although not rising to the level of an assault causing physical injury (P. L. §10.00 [9]), petty forms of offensive touching, such as striking, shoving and kicking, are prohibited when committed with the intent to harass, annoy or alarm the victim. A person acts intentionally with respect to a result or conduct “when his conscious objective is to cause such result or to engage in such conduct.” P.L. §15.05. “Because intent cannot be the subject of a nonhearsay evidentiary allegation, it is necessary only that there be alleged evidentiary facts from which intent may be inferred.” People v. Spiegel, 181 Misc 2d 48, 52 (Crim Ct, New York County 1999) quoting People v. Leiner, NYLJ, Oct. 15, 1997, at 34, col 5 (App Term, 2d & 11th Jud Dists) lv denied 91 NY2d 894 (1998). Intent can be inferred from the defendant’s conduct and/or the surrounding circumstances. See, People v. Bracey, 41 NY2d 296 (1977); People v. Collins, 178 AD2d 789 (3d Dept. 1991); People v. Hawkins, 1 Misc 3d 905(A) (Crim Ct, NY County 2003). Based upon the credible evidence presented, this Court finds that the trial evidence was inadequate as a matter of law to prove guilt of Harassment in the Second Degree beyond a reasonable doubt. This Court finds that when the defendant made contact with the victim, by attempting to push past him to retrieve the package, it was done to retrieve the Federal Express package not to harass, annoy or alarm the victim. As such the defendant is not guilty of this charge.Accordingly, the defendant is found guilty of Criminal Trespass in the Second Degree, Criminal Possession of a Weapon in the Fourth Degree and Attempted Petit Larceny. The defendant is found not guilty of Harassment in the Second Degree.This constitutes the Decision and Order of this Court.Dated: September 10, 2018
