Opinion
No. 2012–1252WCR.
10-29-2014
The PEOPLE of the State of New York, Respondent, v. John D. GARCIA, Appellant.
Opinion
Appeal from a judgment of the City Court of Yonkers, Westchester County (Thomas R. Daly, J., at trial and sentencing; Robert C. Cerrato, J., at the hearings), rendered May 18, 2012. The judgment convicted defendant, after a nonjury trial, of assault in the third degree and harassment in the second degree.
ORDERED that the judgment of conviction is reversed, on the facts, and the accusatory instrument is dismissed.
On January 22, 2009, the People charged defendant, in an information, with, among other things, assault in the third degree (Penal Law § 120.00[1] ) and harassment in the second degree (Penal Law § 240.26[1] ). After a nonjury trial, the City Court convicted defendant of those offenses and acquitted him of the remaining charges.
Defendant's principal claim of error is that the convictions were against the weight of the evidence.
In the exercise of our authority to determine whether a judgment of conviction is supported by the weight of the evidence (CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342 [2007] ), and upon a review of the record in this case, we find that the convictions were against the weight of the evidence. The charges arose from a dispute between defendant and the mother of their female child of whom they have joint custody. In the course of a custody visit on January 21, 2009, while defendant waited on the sidewalk in front of the mother's building, the mother sent the daughter, then five years old, from their apartment to the street alone, and without proper clothing to protect her from the cold. Defendant then brought the child to the landing in front of the mother's apartment and asked the mother to retrieve the child's hat, gloves and scarf. The mother testified that the dispute, which took place at the apartment doorway, ended with defendant kicking her in the knee while wearing a heavy boot, causing her substantial pain. However, there were material inconsistencies in the mother's trial testimony with respect to facts central to the manner in which the offenses were allegedly committed. For example, notwithstanding her initial complaint that defendant wore boots, at the trial she could not initially recall whether defendant was wearing boots or sneakers before insisting that he wore boots, even identifying the brand as “Timberland.” There is no dispute that the record of the mother's 911 call to the police immediately after the incident states that she complained of being struck by a door, and that the post-arrest police inventory of defendant's clothing indicated that defendant was wearing “Nike” sneakers. In this and other respects, the testimony of the People's witness as to matters essential to proof of the offenses were not only internally inconsistent but contradicted in critical respects by reliable evidence extrinsic to her credibility (and for that matter, by defendant's testimony, which was internally consistent and plausible as to facts). We find that these defects were of such magnitude as to render her testimony unreliable and the verdict against the weight of the evidence (cf. People v. Scipio, 61 A.D.3d 899 [2009] ).
In light of the foregoing, we need not address defendant's remaining contentions.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
IANNACCI, J.P., MARANO and TOLBERT, JJ., concur.