Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Lenora Gerald, J.), rendered on May 11, 2005. The judgment convicted defendant, after a nonjury trial, of attempted assault in the third degree and harassment in the second degree.

Judgment of conviction reversed on the law and accusatory instrument dismissed.

Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that the evidence was legally insufficient to establish defendant's guilt of attempted assault in the third degree (Penal
Law §§ 110.00, 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]) beyond a reasonable doubt.

The testimony of the People's witnesses, including defendant's daughter, and of defendant himself established that defendant did not intend, or attempt, to cause physical injury to his daughter, particularly as that term has been defined by statute (Penal Law § 10.00 [9] ["impairment of physical condition or substantial pain"]). Both father and daughter testified that defendant's wife did not want their daughter to go through her pocketbook or to take a key to the apartment from the pocketbook. The defendant's physical encounter with his daughter essentially involved his attempting to pull the pocketbook away from his daughter and her resistence. Under the circumstances, the conviction of attempted assault in the third degree is set aside (see Matter of Agzim S., 309 AD2d 532, 533 [2003]). [*2]

With regard to the conviction of harassment in the second degree, the proof failed to show that defendant was acting with the requisite intent to annoy, harass or alarm (see Penal Law § 240.26 [1]; cf. People v Boss, 10 Misc 3d 136[A], 2005 NY Slip
Op 52126[U] [App Term, 9th & 10th Jud Dists]). Thus, the conviction of harassment in the second degree should similarly be vacated.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: October 27, 2006