SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

201 

KA 10-01906 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

FAISAL MOLLAIE, DEFENDANT-APPELLANT. 

 

HOGAN WILLIG, AMHERST (GEFFREY GISMONDI OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County (Deborah

A. Haendiges, J.), rendered December 3, 2009. The judgment convicted

defendant, upon a nonjury verdict, of harassment in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

affirmed.

Memorandum: Defendant appeals from a judgment convicting him,

after a nonjury trial, of harassment in the second degree (Penal Law

§ 240.26 [1]). Defendant failed to preserve for our review his

contention that the conviction is not supported by legally sufficient

evidence (see People v Gray, 86 NY2d 10, 19). In any event, we reject

that contention. The People presented the testimony of the victim

that defendant attempted to strike her with a closed fist, followed

her throughout their apartment, grabbed her repeatedly, and knocked

her to the ground. In addition, they presented the testimony of a

police officer who stated that he observed that the victim was

bleeding and bruised immediately after the incident. That testimony

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 generally People v Bleakley, 69 NY2d 490, 495). It is well

settled that a “defendant may be presumed to intend the natural and

probable consequences of his [or her] actions . . ., and [that] intent

may be inferred from the totality of conduct of the accused” (People v

Mahoney, 6 AD3d 1104, 1104, lv denied 3 NY3d 660 [internal citations

and quotation marks omitted]; see People v Roman, 13 AD3d 1115, 1116,

lv denied 4 NY3d 802). Moreover, viewing the evidence in light of the

elements of the crime in this nonjury trial (see People v Danielson, 9

NY3d 342, 349), we conclude that the verdict is not against the weight

of the evidence (see generally Bleakley, 69 NY2d at 495).
-2- 201 

KA 10-01906 

We have considered defendant’s remaining contentions and conclude

that they are without merit.

All concur except SCONIERS, J., who dissents and votes to reverse

in accordance with the following Memorandum: I agree with my

colleagues that defendant failed to preserve for our review his

contention that the conviction of harassment in the second degree

(Penal Law § 240.26 [1]) is not supported by legally sufficient

evidence. Nevertheless, I respectfully dissent inasmuch as I agree

with defendant that the evidence is in fact legally insufficient to

support the conviction (see generally People v Bleakley, 69 NY2d 490,

495), and in my view we should exercise our discretion to reach

defendant’s contention in the interest of justice and reverse the

judgment (see CPL 470.15 [6] [a]). “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” (Penal Law § 240.26 [1]). Here, the

evidence established that, while defendant was in his apartment

talking to a third party on his cellular telephone, his wife

(complainant), grabbed the phone from his hand and ran away. As a

result, defendant chased the complainant throughout the apartment and

repeatedly asked her to return the phone. The complainant testified

that, during the chase, defendant pushed her on the shoulder and

grabbed her arm. Both defendant and the complainant testified

consistently that, throughout this incident, defendant repeatedly

asked the complainant to return his phone and did not utter any

threats. Rather, he merely insisted that the phone be returned. 

Thus, while the evidence established that defendant intended to

retrieve his phone from the complainant, it is insufficient to support

the conclusion that he had the requisite “intent to harass, annoy or

alarm another person” (§ 240.26). Therefore, the proof of intent is

insufficient to support the conviction of harassment in the second

degree (see generally Matter of Anthony J. v David K., 70 AD3d 1220,

1221; Matter of Lewis v Robinson, 41 AD3d 996, 997). 

Entered: February 18, 2011 Patricia L. Morgan

Clerk of the Court