Opinion
04-040, 570672/03.
Decided October 11, 2005.
Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County, rendered June 26, 2003 after a nonjury trial (Eugene Oliver, J.), convicting him of sexual abuse in the third degree (Penal Law § 130.55), attempted sexual abuse in the second degree (Penal Law §§ 110.00/130.60[2]), attempted forcible touching (Penal Law §§ 110.00/130.52), attempted endangering the welfare of a child (Penal Law §§ 110.00/260.10[1]) and imposing sentence.
Judgment of conviction rendered June 26, 2003 (Eugene Oliver, J.) reversed, on the law and the facts and in the interest of justice, and the accusatory instrument dismissed.
PRESENT: McCooe, J.P., Gangel-Jacob, Schoenfeld, JJ.
The 13-year old complainant, who lived with her grandmother, was staying overnight with her mother and defendant stepfather and their two children when the alleged incident took place. She was sleeping on a mattress on the floor in the same bedroom as her siblings when she allegedly felt a hand touching her legs, buttocks, stomach and then underneath her shirt. She awoke to see defendant sleeping on the mattress nearby. After spending about five minutes in the bathroom, she returned to see that defendant had left the room. She stayed in the apartment one more night before returning home. No mention of this incident was made until more than a month later, when complainant interrupted a telephone conversation between her grandmother and mother over the complainant's then recent behavioral problems. Complainant was told by her mother that unless her attitude changed she would have to return home and live with her and her siblings, a situation which was not what the complainant wanted. Complainant had more freedom living with her grandmother, her own room and a private school. It was only then that she first told her mother or anyone of the alleged incident, an account which was not believed by her mother.
Both defendant and the complainant testified as to their prior good relationship (like "father and daughter"). While we are reluctant to substitute our own credibility judgment for that of the factfinder, we find the prosecution evidence was arguably contrary to experience and self-contradictory ( see People v. Wallace, 306 AD2d 802, citing People v. Garafolo, 44 AD2d 86, 88), leading us to the conclusion that the trial court failed to give the evidence the weight it should have been accorded ( see People v. Bleakley, 69 NY2d 490, 495). There is a grave risk that an innocent man may have been convicted over this unwitnessed incident, which allegedly took place at a time of familial discord ( see People v. Meza, 5 Misc 3d 78). Furthermore the complainant had a motive to fabricate the incident so that she would not have to return home.
In light of our disposition, we have no occasion to address defendant's remaining points.
This constitutes the decision and order of the Court.