| People v Kearns |
| 2008 NY Slip Op 09296 [56 AD3d 1047] |
| November 26, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v David J.Kearns, Appellant. |
—[*1] James T. Curry, District Attorney, Indian Lake, for respondent.
Carpinello, J. Appeal from a judgment of the County Court of Hamilton County (Feldstein,J.), rendered August 3, 2007, convicting defendant following a nonjury trial of the violation ofharassment in the second degree.
Defendant was charged with harassment in the second degree following a domestic incidentinvolving his teenage daughter. At the nonjury trial that ensued, each gave a different version ofwhat transpired on the night in question. The daughter testified that defendant arrived home oneevening in an intoxicated state and demanded that she go to bed. When she replied that it was nother bedtime, defendant yanked a hair device out of her hand and threw it out the front door. Aftera few more words between them, according to the daughter, she acceded and went to bed. Shethereafter got out of bed because her parents were arguing loudly. At this time, again according tothe daughter, defendant told her "to get back into bed" and she immediately complied by taking afew steps backwards into her room. At this point, defendant followed her, kicked an item locatedon her floor and then proceeded to place his hands on her shoulders and push her. She fell into aladder attached to a loft bed.
Defendant, on the other hand, testified that on the night in question, he became "a littleangry" at his daughter for doing her hair near the kitchen and talking back to him. He admittedthat he grabbed the hair device out of her hand, opened the front door and "chucked it across the[*2]driveway." After she would not go to bed as directed, heclaimed that he "took her by the arm and [he] escorted her to her room . . . firmly,but not overly firmly." He denied ever pushing or shoving her. At trial, defendant asserted ajustification defense, that is, he argued that his conduct that night represented permissibledisciplinary treatment of an insolent child by a parent (see Penal Law § 35.10 [1]).County Court, finding the daughter's testimony to be credible, found defendant guilty as chargedand thereafter sentenced him to 15 days in jail. He now appeals.
Defendant argues that the verdict was not supported by legally sufficient evidence and wasagainst the weight of the evidence. He further claims that the People failed to disprove hisjustification defense beyond a reasonable doubt. To this end, Penal Law § 35.10 (1), asrelevant here, does permit a parent to use reasonable physical force to discipline his or her childwhen that parent reasonably believes it is necessary to maintain discipline (see People vFranklin, 79 AD2d 611, 612 [1980]; see generally Matter of Aaliyah Q., 55 AD3d 969 [2008]; Matter of Collin H., 28 AD3d 806,809 [2006]). In determining whether a parent's belief regarding the need to use physical force tomaintain discipline was reasonable, the trier of fact "must consider whether a reasonable personin the same position as [the parent] . . . would have believed that such force wasnecessary" (1 Charges to Jury and Requests to Charge in a Criminal Case in New York §5:23; see People v Franklin, 79 AD2d at 612).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishdefendant's guilt of harassment in the second degree beyond a reasonable doubt, namely, that heshoved his daughter with the intent to harass, annoy or alarm her (see Penal Law §240.26 [1]). We also find it was legally sufficient to disprove the justification defense(see Penal Law § 35.05 [1]). Crediting the daughter's version of events, defendanthad no legitimate parental purpose for forcefully shoving her since she was obeying hiscommand to go back to bed. Stated otherwise, his conduct under these circumstances—aforceful shove of a frightened and retreating child in the midst of an angry argument with theother parent—cannot reasonably be viewed as a necessary disciplinary or correctivemeasure.
To the extent that defendant argues that his daughter's version of events was implausible, thiscontention involves an issue of credibility. Upon the exercise of our factual review power, we aresatisfied that the verdict was not against the weight of the evidence (see CPL 470.15 [5];People v Bleakley, 69 NY2d 490, 495 [1987]). We are likewise unpersuaded that thesentence imposed was harsh or excessive.
Cardona, P.J., Spain, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.