Opinion
5715.
Decided on October 13, 2011.
Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered March 11, 2008, convicting defendant, after a nonjury trial, of attempted petit larceny and attempted criminal possession of stolen property in the fifth degree and sentencing her to a conditional discharge and payment of restitution, unanimously reversed, on the law, the judgment vacated, the accusatory instrument dismissed, and restitution, to the extent paid, remitted.
Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and White Case LLP, New York (Michael Hamburger of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Emily Anne Aldridge of counsel), for respondent.
Catterson, J.P., Richter, Manzanet-Daniels, Román, JJ.
The verdict was based on legally insufficient evidence. In any event, regardless of sufficiency, the verdict was against the weight of the evidence ( see People v Danielson , 9 NY3d 342 , 348-349).
This case involves missing cash at a store where defendant and other persons worked as cashiers. The only evidence purporting to show that it was defendant who stole the money was a recording of a 90-second video surveillance. This Court has viewed the tape and finds that it fails to prove beyond a reasonable doubt that defendant committed the crimes charged. It is impossible to determine, circumstantially or otherwise, that the unidentifiable object seen in defendant's hand was a safe-drop envelope containing cash. Furthermore, there was no other evidence to explain how defendant was able to take money out of the cash registers or the safe and move it over to the counter area without being detected by her coworkers or by the store's surveillance system.
We accord great deference to the fact-finder's opportunity to hear testimony and observe demeanor. However, this case presents an issue of competing inferences rather than credibility. The complainant, who was not present at the time of the alleged theft, reviewed the videotape and testified as to inferences he drew from it. However, under the circumstances the complainant was in no better position to evaluate the tape than anyone else who viewed it.
In light of the foregoing, we do not reach defendant's remaining contention.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.