Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Robert Mandelbaum, J.), rendered October l7, 2008, after a nonjury trial, convicting her of harassment in the second degree and disorderly conduct, and imposing sentence.

Per Curiam.

Judgment of conviction (Robert Mandelbaum, J.), rendered October l7, 2008, modified, on the law and the facts, to vacate defendant's conviction of harassment in the second degree and to dismiss the count of the accusatory instrument relating thereto and, as modified, affirmed.

The verdict convicting defendant of disorderly conduct (see Penal Law § 240.20[1]) was supported by legally sufficient evidence and was not against the weight of the evidence, which showed that defendant grabbed and pulled the arresting police officer's arm as the latter tried to shut a store entrance door in the midst of a gathering crowd. The trial court, as fact finder, was warranted in concluding that defendant's conduct recklessly created a substantial risk of "a potential or immediate public problem" (cf. People v Munafo, 50 NY2d 326, 331 [1980]). However, defendant's conviction of second-degree harassment (see Penal Law § 240.26[1]) cannot stand, since the incidental physical conduct that occurred during the rapidly escalating encounter was not shown beyond a reasonable doubt to have been actuated by defendant's intent to "harass, annoy or alarm" (Penal Law § 240.26) the complainant police officer. As the People appropriately acknowledged at oral argument of the appeal, the punch or "jab" allegedly thrown by defendant was not depicted in the surveillance tape relied upon by the People at trial.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 22, 2010