Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Alexander B. Jeong, J.), rendered July 17, 2009. The judgment convicted defendant, after a nonjury trial, of attempted criminal possession of a weapon in the fourth degree and harassment in the second degree.

ORDERED that the judgment of conviction is modified, on the facts, by vacating so much of the judgment as convicted defendant of attempted criminal possession of a weapon in the fourth degree; as so modified, the judgment of conviction is affirmed.
Defendant was convicted, after a nonjury trial, of attempted criminal possession of a weapon in the fourth degree (Penal Law §§ 110.00, 265.01 [2]) and harassment in the second degree (Penal Law § 240.26 [1]). At the trial, the complainant, defendant's neighbor, testified that, in the early morning of October 1, 2007, defendant made threatening remarks to the complainant's daughter and threw a pigeon spike from his balcony on to the complainant's adjoining balcony, which landed close to where the complainant was standing.

Defendant did not preserve by specific objection his current claims regarding the sufficiency of the evidence (see People v Gray, 86 NY2d 10 [1999]). In any event, the evidence, when viewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [*2][1983]), was legally sufficient to establish defendant's guilt of attempted criminal possession of a weapon in the fourth degree and harassment in the second degree. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we find no basis to disturb defendant's conviction of harassment in the second degree. The record supports the Criminal Court's finding that, with intent to harass, annoy, or alarm the complainant, defendant attempted to subject the complainant to physical contact (see Penal Law § 240.26 [1]). Defendant's intent can be inferred from his conduct on the day of the incident, such as banging on the common wall between defendant's apartment and the complainant's apartment, and by his making threatening remarks to the complainant's daughter (see People v Steinberg, 79 NY2d 673, 682 [1992]; People v Alexander, 50 AD3d 816, 818 [2008]).

However, with respect to defendant's conviction of attempted criminal possession of a weapon in the fourth degree, we find the verdict to be against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Defendant's guilty verdict required a finding that the pigeon spike, which was made of plastic, was a dangerous instrument (Penal Law § 265.01 [2]) as that term is defined in Penal Law § 10.00 (13). A dangerous instrument is any instrument, article, or substance, no matter how innocuous it may appear to be when used for its legitimate purpose, that is used in a manner which renders it readily capable of causing serious physical injury (Penal Law § 10.00 [13]; People v Carter, 53 NY2d 113 [1981]). Serious physical injury is defined as:

"physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" (Penal Law § 10.00 [10]).

We find that defendant's remaining contentions lack merit.

Accordingly, the judgment of conviction is modified by vacating so much thereof as convicted defendant of attempted possession of a criminal weapon in the fourth degree and, as so modified, the judgment of conviction is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: March 15, 2013