People v. Perniciaro

445 N.E.2d 196, 58 N.Y.2d 751, 459 N.Y.S.2d 20, 1982 N.Y. LEXIS 3951

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed and the indictment dismissed.

Defendant was convicted, after a nonjury trial, of reckless endangerment in the second degree and harassment. The Appellate Division modified by reversing the conviction for harassment and dismissing that count of the indictment on the ground that it was not proved beyond a reasonable doubt.

The conviction for reckless endangerment should also be reversed and the count of the indictment charging that crime should be dismissed. Viewed in a light most favorable to the prosecution, the evidence is legally insufficient to support defendant’s conviction for reckless endangerment in the second degree. The evidence established merely that defendant was a passenger in an automobile that stopped several times behind the complainant’s truck, making it difficult for complainant to move the truck, and that defendant was part of a group of five men when an unidentified member of the group directed threatening statements at the complainant.

There was no evidence that defendant recklessly engaged in conduct that created a substantial risk of serious physical injury to complainant (see Penal Law, § 120.20), or that defendant solicited, requested, commanded, importuned, or intentionally aided the driver of the car to engage in such conduct (see Penal Law, § 20.00). Thus, the statutory elements of the crime were not proved.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order, insofar as appealed from, reversed, etc.