Opinion
570249/04.
Decided May 31, 2006.
Defendant appeals 1) from a judgment of the Criminal Court, New York County (Robert M. Stolz, J.), rendered April 25, 2003, after a nonjury trial, convicting her of attempted petit larceny, and imposing sentence, and 2) by permission, from an order of the same court and Judge, dated March 17, 2004, which denied her motion pursuant to CPL 440.10 to vacate the judgment of conviction.
Judgment of conviction (Robert M. Stolz, J.), rendered April 25, 2003, reversed, on the facts, and as a matter of discretion in the interest of justice, and the accusatory instrument is dismissed. Appeal from order (Robert M. Stolz, J.), dated March 17, 2004, dismissed, as academic.
PRESENT: DAVIS, J.P., GANGEL-JACOB, JJ
We find it appropriate to exercise our statutory authority to reverse defendant's conviction on misdemeanor attempted shoplifting charges as against the weight of the evidence and in the interest of justice ( see CPL 470.15[b][c]) in view of the "seriously disturbing aspects of this case" ( People v. Nickerson, 175 AD2d 74, 76), where the store employees who testified for the prosecution offered substantially divergent accounts of the "price-tag switching" conduct attributed to the defendant and, for that matter, gave contradictory descriptions of the two items of clothing involved; where it appears that defendant initially may have been detained upon suspicions that she was trying to steal a bathing suit that she in fact had previously purchased from another store; and where defendant, an attorney, had no criminal background and had led an otherwise unblemished life. "[O]n balance we are left with a very disturbing feeling that guilt has not been satisfactorily established; that there is a grave risk that an innocent [person] has been convicted; and that we should therefore not let this conviction stand." ( People v. Kidd, 76 AD2d 665, 668, lv dismissed 51 NY2d 882.)
This constitutes the decision and order of the court.