Opinion
2010-1652 W CR.
08-01-2011
The People of the State of New York, Respondent, v. Anthony Ciliberti, Appellant.
PRESENT: : , P.J., TANENBAUM and LaCAVA, JJ
Appeal from a decision of the Justice Court of the Town of Pelham, Westchester County (Stephen F. Huff, J.), rendered June 3, 2010, deemed from a judgment of the same court rendered June 24, 2010 (see CPL 460.10 [6]). The judgment convicted defendant, after a nonjury trial, of harassment in the second degree.
ORDERED that the judgment of conviction is reversed, on the facts, the accusatory instrument is dismissed, and the fine and surcharge, if paid, are remitted.
Following a nonjury trial, defendant was convicted of harassment in the second degree (Penal Law § 240.26 [1]), based on his having shoved the complaining witness against a courthouse wall and made verbal threats inside and outside of the courthouse.
Upon the exercise of our factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we find that the verdict was against the weight of the evidence. We have weighed "the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v Zephyrin, 52 AD3d 543, 543 [2008] [internal quotations and citation omitted]) and "determine firstly, that an acquittal ... would not have been unreasonable based upon the evidence presented, and secondly, that the trial court failed to accord the evidence the weight it should have been accorded" (id.; see People v Danielson, 9 NY3d at 348). There was no evidence to support defendant's guilt other than the testimony of the complainant, and his testimony was inconsistent and contradicted in material respects by the credible testimony of the other witnesses, defendant's wife's attorney and the impartial court officer (see People v Gonzalez, 84 AD3d 1400 [2011]; People v Zephyrin, 52 AD3d at 544).
Defendant's remaining contention has been rendered academic in light of our determination.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.