Appeal from a judgment of the District Court of Nassau County, First District (Martin J. Massell, J.), rendered December 5, 2006. The judgment convicted defendant, upon a jury verdict, of stalking in the fourth degree.

ORDERED that the judgment of conviction is modified, on the law, by reducing defendant's conviction of stalking in the fourth degree to one of attempted stalking in the fourth degree; as so modified, the judgment of conviction is affirmed.

Defendant was charged with stalking in the fourth degree (Penal Law § 120.45 [2]). This subdivision provides:

"A person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct:

. . .
2. Causes material harm to the mental or emotional health of such person, where such conduct consists of following . . . or initiating communication or contact with such person, . . . and the actor was previously clearly informed to cease that conduct . . ."
The prosecution theory was that defendant "engage[d] in a course of conduct" directed toward a lifeguard who worked at two pools that defendant frequented. On appeal, defendant contends, among [*2]other things, that the trial evidence was legally insufficient.

Upon a review of the record, we find that the evidence, when viewed "in a light most favorable to the People" (People v Hawkins, 11 NY3d 484, 493 [2008]), was legally insufficient to establish defendant's guilt of stalking in the fourth degree. The testimony at trial established that defendant was "clearly informed to cease" his conduct on January 15, 2004. The actions by defendant alleged to have been a continuation of the "course of conduct" after that date were his appearances at one of the pools on June 19, 2004 and June 20, 2004, while the victim was working there. Because there was no testimony to the effect that defendant engaged in conduct "consist[ing] of following . . . or initiating communication or contact with [the victim]" on either of those days, the proof of stalking was legally insufficient. The evidence was, however, legally sufficient to establish defendant's guilt of attempted stalking in the fourth degree (see Penal Law §§ 110.00, 120.45 [2]).

In our view, defendant's remaining contentions lack merit.

Accordingly, we modify the judgment by reducing the conviction to one of attempted stalking in the fourth degree (see CPL 470.15 [2] [a]). In light of the fact that defendant has completed his sentence, we do not remit the matter for resentencing.

Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: April 21, 2010