SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
May 21, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Shari Michels, J.), rendered August 12, 2010.
People v Fevoy (Jules)
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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on May 21, 2012
PRESENT: WESTON, J.P., PESCE and RIOS, JJ
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 modified, on the law, by vacating the sentence imposed, and the matter is remitted to the Criminal Court for resentencing; as so modified, the judgment of conviction is affirmed.
Defendant was convicted of 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 ). Viewing the evidence in the light most favorable to the People (see People v Hawkins, 11 NY3d 484, 493 ), we find, contrary to defendant's contention, that the evidence was legally sufficient to sustain defendant's conviction of all three offenses. In conducting our independent weight of the evidence review (see CPL 470.15 ), we assess the evidence in this non-jury trial in light of the elements of the offenses (see People v Danielson, 9 NY3d 342, 348-349 ), and accord great deference to the Criminal Court's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane, 7 NY3d 888, 890 ; People v Romero, 7 NY3d 633, 644-645 ; People v Mateo, 2 NY3d 383, 410 ; People v Bleakley, 69 NY2d 490, 495 ). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the credible evidence with respect to any of the charges.
However, CPL 380.20 requires that where convictions are entered on multiple charges, the court must pronounce sentence upon each charge (see People v Sturgis, 69 NY2d 816, 817 ; People v Sacco, 294 AD2d 452, 453 ; People v Caravousanos, 2 Misc 3d 7, 11 [App Term, 9th & 10th Jud Dists 2003]). Since the Criminal Court erred in imposing a single term of imprisonment of 90 days covering two class B misdemeanors and a violation, the latter of which carries a maximum sentence of 15 days (Penal Law § 70.15 ), the sentence is vacated and the matter is remitted to the Criminal Court for resentencing (see People v Henry, 80 AD3d 625, 626 ).
In view of the foregoing, the issues raised on appeal concerning the excessiveness of the sentence are rendered moot.
Pesce and Rios, JJ., concur.
Weston, J.P., dissents and votes to reverse the judgment of conviction and dismiss the accusatory instrument in the following memorandum:
Assuming the verdict was legally sufficient, I would nevertheless set it aside as against the weight of the evidence (see CPL 470.15; People v Romero, 7 NY3d 633 ). Accordingly, I respectfully dissent and vote to reverse defendant's judgment of conviction and dismiss the accusatory instrument.
The only evidence proffered by the People to support defendant's guilt was the complainant's 911 call, medical forms, and the responding officers' testimony--all of which were called into doubt by the complainant's own testimony. Other than the complainant's identification of defendant and a scratch on her face, nothing in the officers' testimony established that defendant had committed the crimes charged. Indeed, neither officer ever observed any physical contact between defendant and the complainant. While the complainant's 911 call and medical forms indicate that the complainant had accused defendant of choking her, nothing in the evidence submitted supports the allegation that defendant had also punched her. In any event, the People's proof was flatly refuted by the complainant's own testimony.
Testifying for the defense, the complainant disavowed her accusations against defendant and offered compelling and unwavering testimony as to why she had fabricated those accusations. In scrupulous detail, the complainant recounted how she had gone to defendant's residence the night before and had seen defendant with another woman. She waited outside for two hours before returning home. The following morning, she returned to defendant's residence and saw him escort the woman from his apartment. Enraged, the complainant confronted defendant and smacked, punched, and kicked him, while defendant attempted to hold her hands back. She admitted that defendant never tried to choke her and that she called police because she was "very mad . . . I felt like he wasn't feeling the pain I was feeling, and he didn't understand." Having witnessed defendant with another woman the night before, the complainant had ample opportunity for reflection and fabrication when she called the police. To the extent the People argue that the complainant had a motive to testify falsely since defendant provided her with financial support, nothing in the evidence indicates that the complainant resided with defendant and that defendant exclusively supported her financially. On this record, it cannot be said that defendant's conviction was supported by the weight of the credible evidence.
Accordingly, I vote to reverse the judgment of conviction and dismiss the accusatory instrument. Decision Date: May 21, 2012
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