Appeal from a judgment of the Justice Court of the Town of Southold, Suffolk County (William H. Price, J.), rendered on January 31, 2003. The judgment convicted defendant, upon a jury verdict, of harassment in the second degree.

Judgment of conviction affirmed.

Defendant was charged with criminal mischief in the fourth degree (Penal Law § 145.00), obstructing governmental administration (Penal Law § 195.05), two counts of harassment in the second degree (Penal Law § 240.26 [1]) and resisting arrest (Penal

Law § 205.30). Prior to trial, one count of harassment in the second degree was dismissed by the court on the ground that it was jurisdictionally defective. Following jury deliberations, defendant was acquitted of obstructing governmental administration and resisting arrest, and convicted of criminal mischief in the fourth degree and harassment in the second degree. The instant appeal is from the judgment convicting defendant of harassment in the second degree.

At the outset, we note that the court below properly limited the cross-examination of Officer Zuhoski regarding depositions he gave in another proceeding, in the absence of a showing by defense counsel that he intended to question the officer with respect to specific acts [*2]of misconduct and that the cross-examination was being conducted in good faith upon a reasonable basis in fact (see People v Daley, 9 AD3d 601 [2004]). Rather, it appears that counsel was intent on pursuing a line of questioning which was nothing more than an impermissible fishing expedition.

We find that defendant's trial motion to dismiss the charge of harassment in the second degree was properly denied by the court below since the evidence adduced at trial established that the conduct constituting harassment occurred prior to her arrest rather than following the arrest, as defendant contends. In addition, defendant's[*3]contention that the evidence was legally insufficient to establish her guilt of harassment in the second degree on the ground that the People did not establish defendant's intent to harass, annoy or alarm the officer is not preserved for appellate review since it was raised for the first time on appeal (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in a light most favorable to the People (People v Contes, 60 NY2d 620 [1983]), we find that the evidence adduced at trial was legally sufficient to establish defendant's intent beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]).

The contention that the verdict finding defendant guilty of harassment in the second degree was inconsistent with the verdict acquitting her of resisting arrest and obstructing governmental administration is unpreserved for appellate review since defendant failed to raise this issue prior to the discharge of the jury (see CPL 470.05 [2]; People v Curry, 198 AD2d 371 [1993]). In any event, the verdict was not [*4]
inconsistent since the elements of harassment in the second degree are not identical to the elements of resisting arrest and obstructing governmental administration (see People v McFadden, 194 AD2d 566 [1993]).

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: March 1, 2006