Opinion
570571/04.
Decided March 14, 2006.
Defendant appeals from a judgment of the Criminal Court, Bronx County, (Ralph Fabrizio, J.), rendered June 24, 2004, after a nonjury trial, convicting him of sexual abuse in the third degree, forcible touching, and harassment in the second degree, and imposing sentence.
Judgment of conviction (Ralph Fabrizio, J.), rendered June 24, 2004, reversed, on the facts, and as a matter of discretion in the interest of justice, and the accusatory instrument is dismissed.
PRESENT: Suarez, P.J., McCooe, Gangel-Jacob, JJ.
We find it appropriate to exercise our statutory authority to reverse defendant's conviction on misdemeanor sexual abuse and related 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 video surveillance tape introduced into evidence, though not dispositive, fails to depict the touching complained of and establishes that any contact that may have occurred in the crowded high school hallway produced no contemporaneous, discernible response from the complainant, the three other individuals with whom she was standing, or anyone else; where the teacher in the assembled group neither saw any "suspicious behavior" on defendant's part nor was informed of any; and where the defendant had no prior criminal background. "[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 man 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.
I concur.