Judgment of conviction for assault in the third degree unanimously reversed on the law and information dismissed.
Judgment of conviction for harassment in the second degree unanimously affirmed.
On August 5, 1995, defendant initiated an altercation with his neighbors when defendant was prohibited from driving his automobile onto his street. The street had been closed to vehicular traffic to accommodate a town-sanctioned "block party."
The information alleging assault in the third degree states:
A "supporting deposition" of Freddie Wilkerson also states that "[defendant] started throwing punches at me. During this I attempted to fight back, but he is much larger than I am and he knocked me to the ground. This caused injury to my back and side."
The information charging assault in the third degree is jurisdictionally defective, mandating dismissal in view of the fact that the instrument fails to properly allege the requisite element of physical injury. The documents state only that defendant hit and kicked the victim, causing "a lot of pain," and "injury to my back and side." Without a proper development of the injuries, the element of "physical injury" is not factually demonstrated, mandating dismissal of the information (see, People v Garguilo, NYLJ, May 15, 1997, at 31, col 4 [App Term, 9th & 10th Jud Dists]; see also, People v Alejandro, 70 N.Y.2d 133).
We find that the jury properly convicted defendant of harassment in the second degree.
At the conclusion of the presentation of evidence, the court gave the jury its final instructions. When the jury returned with its verdict, the following colloquy took place:
Thereafter, the jury returned with unanimous guilty verdicts for one count of assault in the third degree and one count of harassment in the second degree. Defendant was acquitted of one other count of harassment in the second degree.
The court then reviewed the three informations to ensure that the verdicts were reached with respect to the correct counts. Further, the court polled the jury which then individually answered in the affirmative when asked whether the verdict was correctly stated. Despite the fact that defendant was acquitted of one of the harassment charges, the jury nevertheless answered in the affirmative when asked if the correct verdict was guilty.
After the jury was dismissed, defendant moved to set aside the verdicts pursuant to CPL 440.10, arguing that same were rendered contrary to the weight of the evidence, and "based upon the ground that it appears this was a 5-6 vote." It must be noted that no objection appears in the record concerning the jury's affirmative answer of guilty when polled with respect to the harassment charge for which defendant was actually acquitted.
Defendant first argues that the court erred in failing to charge the jury about their duty to deliberate and reach a unanimous verdict. Because the record is devoid of any objection at trial, these claims have not been preserved for appellate
It is well settled that the propriety of a jury charge will be upheld if it adequately apprises the jury of the law governing the case (see, People v Ladd, 89 N.Y.2d 893; People v Dory, 59 N.Y.2d 121; People v Woods, 41 N.Y.2d 279; CPL 300.10). In the case at bar, defendant contends only that the court failed to instruct the jury of its duty to deliberate and reach a unanimous verdict. A review of the record indicates, however, that the court made the following statements to the jury:
This charge, as a whole, conveys to the jury their duty to deliberate.
Turning to defendant's argument that the jury was allegedly tainted by nonjudicial instructions concerning unanimity of the verdict, there is nothing in the record to support this contention. Because no such corroboration exists, we cannot determine whether any unauthorized communication was made with the jury or whether defendant was excluded from a material stage of the trial (see, People v Rodriguez, 251 A.D.2d 603). Moreover, even assuming that the jury was given nonjudicial information, the court gave a prompt curative instruction that the verdict must be unanimous, and sent the jury back to deliberate.
Defendant further claims that the harassment in the second degree conviction must be set aside because no intent to harass complainant Julia Wilkerson is found in the record. A person is guilty of harassment in the second degree
Contrary to defendant's assertions, the element of intent necessary to establish the crime may be implied by the act itself (see, People v McGee, 204 A.D.2d 353).
Finally, viewing the evidence in a light most favorable to the People (People v Contes, 60 N.Y.2d 620), we find it was legally sufficient to establish defendant's guilt beyond a reasonable doubt. The evidence established that defendant displayed a belligerent and hostile attitude toward his neighbors which was clearly manifested in his unprovoked physical confrontation with a defenseless 62-year-old woman. Moreover, since all issues of credibility and the weight to be accorded to the evidence adduced at trial are questions to be determined by the trier of facts, the jury's determination should not be disturbed, as the record amply supports its findings (People v Gaimari, 176 N.Y. 84). Thus, upon the exercise of this court's power of factual review, we are satisfied that the verdict was not against the weight of the credible evidence (see, supra; see also, CPL 470.15 ).