Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Debra Silber, J.), rendered January 19, 2010. The judgment convicted defendant, after a nonjury trial, of two counts of attempted aggravated harassment in the second degree (Penal Law §§ 110.00, 240.30 [1] [a]; [2]).

ORDERED that the judgment of conviction is modified, on the law, by vacating the conviction of attempted aggravated harassment in the second degree pursuant to Penal Law §§ 110.00, 240.30 (2), and dismissing that count of the accusatory instrument; as so modified, the judgment of conviction is affirmed.

Defendant was charged in a single information with two counts of aggravated harassment in the second degree (Penal Law § 240.30 [1] [a]; [2]) and with one count
of harassment in the second degree (Penal Law § 240.26 [1]). The counts of aggravated harassment in the second degree were subsequently reduced to attempted aggravated harassment in the second degree (Penal Law §§ 110.00, 240.30 [1] [a]; [2]). After a nonjury trial, the Criminal Court found defendant guilty of both counts of attempted aggravated harassment in the second degree and not guilty of harassment in the second degree. On appeal, defendant argues [*2]that the accusatory instrument was facially insufficient insofar as it charged her with violating Penal Law §§ 110.00, 240.30 (2), and that her convictions for both counts of attempted aggravated harassment in the second degree were based upon legally insufficient evidence and were against the weight of the evidence.

With regard to the count of the information charging defendant with attempted aggravated harassment in the second degree (Penal Law §§ 110.00, 240.30 [2]), the statute provides, that "a person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she: . . . 2. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication . . . ." The information in this case fails to allege facts showing, if true (see CPL 100.40 [1] [c]), that defendant's telephone calls in question had no purpose of legitimate communication, and, thus, the count of the accusatory instrument charging a violation of Penal Law §§ 110.00, 240.30 (2) is jurisdictionally defective (see People v Stewart, 22 Misc 3d 131[A], 2009 NY Slip Op 50161[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; People v Singh, 1 Misc 3d 73 [App Term, 2d & 11th Dists 2003]).

Defendant's argument that the evidence was legally insufficient to support the conviction for attempted aggravated harassment in the second degree pursuant to Penal Law §§ 110.00, 240.30 (1) (a) is unpreserved for appellate review. While defense counsel interposed a general motion for a trial order of dismissal, this does not preserve the particular challenges to the legal sufficiency of the evidence raised on appeal (see People v Gray, 86 NY2d 10, 19 [1995]; People v Sweeney, 84 AD3d 1123 [2011]; People v Rivera, 74 AD3d 993, 993 [2010]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of attempted aggravated harassment in the second degree pursuant to Penal Law §§ 110.00, 240.30 (1) (a) beyond a reasonable doubt. 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 accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon a review of the record, we are satisfied that the verdict as to that charge was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

Accordingly, the judgment of conviction is modified by vacating the conviction of attempted aggravated harassment in the second degree (Penal Law §§ 110.00, 240.30 [2]) and dismissing that count of the accusatory instrument.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 08, 2013