SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department
February 15, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
People v O'Neal (Tony)
Decided on February 15, 2012
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 This opinion is uncorrected and will not be published in the printed Official Reports.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 RIOS, JJ
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Alexander Calabrese, J.), rendered December 4, 2008. The judgment convicted defendant, after a non-jury trial, of attempted assault in the third degree, menacing in the third degree and harassment in the second degree.
ORDERED that the judgment of conviction is reversed, on the facts, the information is dismissed, and the fine and surcharge, if paid, are remitted.
Defendant was charged with attempted assault in the third degree (Penal Law §§ 110.00, 120.00), menacing in the third degree (Penal Law § 120.15) and harassment in the second degree (Penal Law § 240.26 ). At a non-jury trial, the complainant, defendant's supervisor at a residential home for handicapped persons, testified that defendant had launched an unprovoked attack on her, punching and kicking her, and loudly threatening her life. She testified that the incident had occurred at their place of employment and had resulted in two co-workers, within 20 feet of the incident, rushing in to pull defendant away. The co-workers identified by the complainant testified for the defense that no such physical altercation occurred, although they confirmed that defendant had raised his voice to the complainant during a conversation about his request to take vacation. The co-workers further testified that the complainant had urged them to testify to events that did not happen.
Defendant's argument that the evidence was legally insufficient to support the verdict is unpreserved for appellate review. While defense counsel interposed a general motion for a trial order of dismissal on the ground of failure to establish a prima facie case, this does not preserve the particular challenge to the legal sufficiency of the evidence raised on appeal (see People v Gray, 86 NY2d 10, 19 ; People v Sweeney, 84 AD3d 1123, 1123 ; People v Rivera, 74 AD3d 993, 993 ).
Upon the exercise of our factual review power (see People v Danielson, 9 NY3d 342 ; People v Romero, 7 NY3d 633 ; People v Bleakley, 69 NY2d 490, 495 ), we find that the testimony of the complainant was implausible and unsupported by the testimony of the other witnesses. As there was no evidence, beyond the testimony of the complainant, to support defendant's convictions, and the other witnesses, who were the complainant's subordinates, contradicted her story against their own self-interest, we find that the judgment of conviction was against the weight of the evidence (see People v Zephyrin, 52 AD3d 543 ; People v Giocastro, 210 AD2d 254 ).
Accordingly, the judgment of conviction is reversed, the information is dismissed, and the fine and surcharge, if paid, are remitted.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 15, 2012
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