| People v Caulkins |
| 2011 NY Slip Op 02491 [82 AD3d 1506] |
| March 31, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Harlan O.P. Caulkins, Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland, for respondent.
Rose, J. Appeal from a judgment of the Supreme Court (Campbell, J.), rendered January 13,2010 in Cortland County, convicting defendant following a nonjury trial of the violation ofharassment in the second degree.
Defendant was charged with the violation of harassment in the second degree following analleged altercation with Alezandra Smith, the mother of his young son. The Cortland CountyPublic Defender was assigned to represent defendant. The matter was then transferred to theIntegrated Domestic Violence part of Supreme Court and the Public Defender appeared there ondefendant's behalf. The court, however, issued a blanket order precluding the Public Defenderfrom personally appearing before it on behalf of any defendant, explaining that it was "unable topreside over cases in which [the Public Defender personally] appears as counsel" due to apending appeal regarding a ruling the court had made on an unrelated matter. The court thenordered the Public Defender to reassign the case to one of his three part-time Assistant PublicDefenders. Following a nonjury trial, the court found defendant guilty and sentenced defendant to15 days in jail, as well as a two-year no-contact order of protection requiring him to stay awayfrom both Smith and his child.
Defendant's claim that his conviction was not based on legally sufficient evidence was notpreserved by an appropriate objection (see People v Gray, 86 NY2d 10, 20 [1995]; People v Shutter, 72 AD3d 1211,1213 [2010], lv denied 14 NY3d 892 [2010]). Nevertheless, upon our [*2]review of the record, we conclude that defendant's argument hasmerit, and we exercise our interest of justice jurisdiction and reverse his conviction (seeCPL 470.15 [3]).
The charge of harassment in the second degree requires that the People present evidenceestablishing that a defendant, "with intent to harass, annoy or alarm another person. . . strikes, shoves, kicks or otherwise subjects such other person to physicalcontact" (Penal Law § 240.26 [1]). Such intent can be inferred from the act itself or fromthe defendant's conduct and the surrounding circumstances (see People v Bracey, 41NY2d 296, 301 [1977]; People v Collins, 178 AD2d 789, 789-790 [1991]).
Here, deferring to Supreme Court's decision to credit Smith's version of the events, we findthat the evidence presented is insufficient to infer defendant's intent to harass, annoy or alarmSmith. Smith testified that when she saw defendant walking on the other side of the street, shecrossed the street and approached defendant. She testified that she started to argue with defendantbecause she was upset about an issue involving their son. According to Smith, defendant thenshoved her left shoulder with an open hand, said "this [is] done" and he immediately left. Smithdid not call the police about the incident; rather, the police were notified of the incident whileinvestigating a related matter between Smith's friends and defendant's girlfriend.
Given this limited proof, the physical contact does not, by itself, establish beyond areasonable doubt that defendant intended to harass, annoy or alarm Smith during the allegedincident (cf. People v Bracey, 41 NY2d at 301). Likewise, there is insufficient evidencein the record from which to infer such an intent from his conduct and the surroundingcircumstances (compare id. at 301-302; People v Mollaie, 81 AD3d 1448, 1449 [2011]; People vCollins, 178 AD2d at 789-790). While Smith testified that she was annoyed because of twoprevious encounters with defendant, her reaction is immaterial in establishing defendant's intent(see Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, PenalLaw § 240.26, at 71; see e.g. People v Jemzura, 29 NY2d 590 [1971]). Inasmuchas the evidence, viewed in a light most favorable to the prosecution, cannot establish beyond areasonable doubt defendant's intent to harass, annoy or alarm Smith, the conviction cannot stand.Defendant's remaining arguments, with one exception, are academic.
Turning to that remaining argument, we are compelled to note that Supreme Court abused itsdiscretion in excluding the Public Defender from appearing on behalf of defendant and orderingthat an Assistant Public Defender be assigned to appear in the Integrated Domestic Violence partwhenever a party in that court is represented by the Public Defender. The reasoning set forth bythe court—that there was a pending CPLR article 78 proceeding brought by the PublicDefender to challenge its prior ruling—does not support either a disqualification of thePublic Defender or the court's apparent view that the method by which he appealed its priorruling presented a conflict of interest for the court. In any event, such a conflict on the part of thecourt would not warrant the court's interference with the established attorney-client relationshipbetween the Public Defender and defendant (see People v Knowles, 88 NY2d 763,766-767 [1996]; People v Espinal,10 AD3d 326, 329 [2004], lv denied 3 NY3d 740 [2004]).
Mercure, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that judgment is reversed, as amatter of discretion in the interest of justice, information dismissed, two-year order of protectionin favor of Alezandra Smith and the parties' child vacated, and fine, if paid, remitted todefendant.