People v. Varlack (Dwight)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 22, 2018
• Docket: 2018 NYSlipOp 50243(U)
• Status: Published

Opinion

The People of the State of New York, Respondent,

against

Dwight Varlack, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Raymond L. Bruce, J.), rendered February 1, 2013, convicting him, after a nonjury trial, of harassment in the second degree, and imposing sentence.

Per Curiam.

Judgment of conviction, (Raymond L. Bruce, J.), rendered February 1, 2013, affirmed.

The court properly granted the People's pretrial motion to amend the information to add the charge of second-degree harassment (see CPL 100.45[3]; People v Harper, 37 NY2d 96, 99-100 [1975]). The newly added charge is sufficiently supported by the facts alleged in the original instrument, namely, that defendant "intentionally place[d] or "attempt[ed] to place another person in reasonable fear of physical injury by "point[ing] a black hand gun at" the victim and stating "GET THE F*** OUT OF HERE." Contrary to defendant's contention, the requisite intent to harass, annoy or alarm and the reasonable threat of harmful physical contact (see Penal Law § 240.26[1]) may be inferred from his conduct and the surrounding circumstances (see People v Bracey, 41 NY2d 296 [1977]; People v Collins, 178 AD2d 789 [1991]; see also Matter of Shane EE., 48 AD3d 946, 947-948 [2008]; People v Sylla, 7 Misc 3d 8, 10 [2005], lv denied 4 NY3d 857 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: February 22, 2018