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The People of the State of New York v. Donna Mccoy

December 27, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
DONNA MCCOY,
APPELLANT.



Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Toko Serita, J.), rendered May 15, 2008.

People v McCoy (Donna)

Decided on December 27, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., WESTON and STEINHARDT, JJ

The judgment convicted defendant, after a non-jury trial, of driving while ability impaired and leaving the scene of an accident with property damage. ORDERED that the judgment of conviction is reversed, on the facts, the accusatory instrument is dismissed, and the fine, if paid, is remitted.

Following a non-jury trial, defendant was convicted of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]) and leaving the scene of an accident with property damage (Vehicle and Traffic Law § 600 [1] [a]). At trial, a witness testified that, at about 10:10 P.M., he was driving through an intersection when a white vehicle with Virginia plates "blew [past] the stop sign" and collided into his vehicle. In court, the witness identified defendant as the driver of the white vehicle. After the collision, he walked over to defendant's vehicle and stood by its window for about 10 to 20 seconds before defendant drove away. Defendant was later arrested after a police officer saw a white vehicle with Virginia plates traveling the wrong way on a one-way street. The police officer testified that defendant was a front seat passenger in the vehicle, which another woman was driving, and a child was seated in the back.

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 quotation marks 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). Accordingly, the verdict convicting defendant of driving while ability impaired and leaving the scene of an accident with property damage is reversed and the accusatory instrument is dismissed.

Weston and Steinhardt, JJ., concur.

Pesce, P.J., dissents in a separate memorandum.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT PESCE, P.J., WESTON and STEINHARDT, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- DECIDED ...


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