By: Aliotta, P.J., Elliot, Toussaint, JJ. Alan Ross, for appellant. Kings County District Attorney(Leonard Joblove, Rhea A. Grob and Coby Ballard of counsel), for respondent. 2018-520 K CR. PEOPLE v. PATTERSON, THERESA — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Laura R. Johnson, J.), rendered February 16, 2018. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree, and imposed sentence. ORDERED that the judgment of conviction is affirmed. In an information, the People charged defendant with assault in the third degree (Penal Law §120.00 [1]), attempted assault in the third degree (Penal Law §§110.00, 120.00 [1]), menacing in the third degree (Penal Law §120.15 [1]), and harassment in the second degree (Penal Law §240.26 [1]), based on an incident at her mother’s nursing home during which defendant, the complainant’s sister, allegedly struck the complainant, causing his hand to hit his eye. The charge of assault in the third degree was subsequently dismissed and, after a nonjury trial, defendant was convicted of harassment in the second degree and acquitted of the remaining counts. On appeal, defendant’s sole contention is that the verdict was against the weight of the evidence because her brother was not a credible witness. In fulfilling our responsibility to independently review the weight of the evidence (see CPL 470.15 [5]; People v. Danielson, 9 NY3d 342 [2007]), and giving due deference to the trial court’s opportunity to “view the witnesses, hear the testimony and observe demeanor” (People v. Bleakley, 69 NY2d 490, 495 [1987]; see also People v. Lane, 7 NY3d 888, 890 [2006] ["whether the finder of fact was a judge or a jury…those who see and hear the witnesses can assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record"] [citation omitted]), we find that it cannot be said that the verdict of guilt of harassment in the second degree was against the weight of the evidence (see e.g. People v. Wallace, 53 AD3d 795, 797 [2008] ["Credibility is generally an issue for the trier of fact whose province it is to believe all or part of a witness's testimony, even though it is at times confusing and inconsistent"] [internal quotation marks and citation omitted]; People v. Jones, 141 AD2d 667, 668 [1988] [same]). Here, the complainant testified that defendant threw a punch at his face, which he blocked with his hand but caused his hand to strike his eye. While the Criminal Court declined to accept all of the complainant’s testimony as truthful or accurate, it credited so much of his testimony as was necessary to establish the elements of harassment in the second degree, namely that defendant, “with intent to harass, annoy or alarm” the complainant, had struck or otherwise subjected him to physical contact, or attempted or threatened to do the same (Penal Law §240.26 [1]; see People v. Chiddick, 8 NY3d 445, 448 [2007] [harassment in the second degree is committed by "petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives"] [internal quotation marks and citation omitted]). Accordingly, the judgment of conviction is affirmed. ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur. March 12, 2021
By: Weston, J.P., Toussaint, Golia, JJ. Appellate Advocates (Ava C. Page of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Jodi L. Mandel and Arieh Schulman of counsel), for respondent. 2018-918 K CR. PEOPLE v. ETIENNE, WALKYN — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Keshia Espinal, J.), rendered April 13, 2018. The judgment convicted defendant, upon his plea of guilty, of unauthorized use of a vehicle in the third degree, and imposed sentence. The appeal from the judgment of conviction brings up for review the propriety of a final order of protection. ORDERED that the judgment of conviction is affirmed. Defendant pleaded guilty to unauthorized use of a vehicle in the third degree (Penal Law §165.05 [1]), and was sentenced to 30 days in jail. A five-year final order of protection also issued. On appeal, defendant contends that this court should vacate the order of protection or, in the alternative, reduce the duration thereof as a matter of discretion in the interest of justice. Defendant’s contentions regarding the final order of protection are not preserved for appellate review, since he failed to object to the issuance of the order of protection, or to the duration thereof, at sentencing and did not move to vacate or modify the order in the Criminal Court (see CPL 470.05 [2]; People v. Nieves, 2 NY3d 310, 316-317 [2004]; People v. Appiarius, 160 AD3d 889 [2018]; People v. Rodriguez, 157 AD3d 971 [2018]; People v. Kornegay, 59 Misc 3d 134[A], 2018 NY Slip Op 50489[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), and we decline to reach this issue in the interest of justice (see People v. Rodriguez, 157 AD3d 971). Accordingly, the judgment of conviction is affirmed. WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur. March 12, 2021
