Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered January 4, 2010.
Decided on April 20, 2012
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
The judgment convicted defendant, upon a jury verdict, of offering a false instrument for filing in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the facts, the indictment is dismissed and the matter is remitted to Genesee County Court for proceedings pursuant to CPL 470.45.
Defendant appeals from a judgment convicting her upon a jury verdict of one count of offering a false instrument for filing in the first degree (Penal Law § 175.35). The conviction arises from defendant's failure, with the alleged intent to defraud the Genesee County Department of Social Services (DSS), to report on an application for food stamp benefits that the father of her youngest child (hereafter, father) was living in the household. On a prior appeal, we dismissed 12 of the 13 counts of the indictment for lack of legally sufficient evidence, and we granted a new trial on the instant count (People v Oberlander, 60 AD3d 1288).
Contrary to the contention of defendant, when viewing the evidence in the light most favorable to the People and affording the People "all reasonable evidentiary inferences," we conclude that the evidence is legally sufficient to support the conviction (People v Delamota, 18 NY3d 107, 113). We nevertheless agree with defendant that the verdict is against the weight of the evidence.
The Court of Appeals has recently reiterated that, in reviewing the weight of the evidence, we must "affirmatively review the record; independently assess all of the proof; substitute [our] own credibility determinations for those made by the jury in an appropriate case; determine whether the verdict was factually correct; and acquit a defendant if [we are] not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt" (id. at 116-117).
The theory of the prosecution's case was that the father lived with defendant at an address in Batavia when she filed her application for recertification for food stamp benefits on November 2, 2005 and that he moved with defendant and her children to another location in mid-November. It is undisputed that defendant advised DSS officials of her intent to move. It is also undisputed that defendant advised a DSS employee in January 2006 that the father would be moving in with her at the new location. The People presented the testimony of the boyfriend of defendant's co-worker (hereafter, co-worker's boyfriend), who had lived with defendant and provided child care for her at the Batavia residence, as well as the testimony of the co-worker herself (co-worker). The co-worker's boyfriend testified that the father lived with defendant at the Batavia residence and moved with her to the new residence in November 2005. Defendant, the father, as well as defendant's mother, who also cared for the children while defendant worked two jobs and attended business school, all testified that the father did not live with defendant until he moved in with her in January 2006. DSS records reflect that, prior to January 2006 the father resided at an address in Medina, which the father testified was his mother's residence.
After he was granted immunity from prosecution, the co-worker's boyfriend testified that he and the co-worker "often" smoked crack cocaine while he was caring for defendant's children. He denied that defendant was upset with him when she learned in October 2005 that he had been using drugs while caring for the children. Defendant, however, testified that she and the co-worker's boyfriend had a "huge" argument when she learned of his drug use and that, as a result of ...