| People v Chase |
| 2009 NY Slip Op 02621 [60 AD3d 1077] |
| March 31, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamalChase, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Luke E. Bovill and Andrew R. Kassof counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Freehill, J.),rendered November 7, 2007, convicting him of robbery in the second degree and assault in thethird degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the facts, the indictment is dismissed, and thematter is remitted to the County Court, Orange County, for the purpose of entering an order in itsdiscretion pursuant to CPL 160.50.
The defendant was convicted of robbery in the second degree and assault in the third degreein connection with an incident that occurred on July 26, 2006, at 7:30 a.m., in Middletown, NewYork. The jury found that the defendant exited a vehicle that pulled up next to three teenage boyswho were walking to school, punched one of the boys, and chased after another of the boys, fromwhom he forcibly stole two dollars.
The defendant's argument that the evidence was legally insufficient to establish his identityis unpreserved for appellate review (see People v Hawkins, 11 NY3d 484 [2008];People v Folkes, 43 AD3d 956 [2007]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), itwas legally sufficient to establish his identity as the person who committed [*2]the robbery and assault.
However, upon the exercise of our independent factual review power (see CPL470.15 [5]), we find that the verdict of guilt was against the weight of the evidence. "[W]eight ofthe evidence review requires a court first to determine whether an acquittal would not have beenunreasonable. If so, the court must weigh conflicting testimony, review any rational inferencesthat may be drawn from the evidence and evaluate the strength of such conclusions. Based on theweight of the credible evidence, the court then decides whether the jury was justified in findingthe defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 348[2007]; see People v Bleakley, 69 NY2d 490 [1987]; People v Bornhoeft, 53AD3d 666 [2008]). "Essentially, the court sits as a thirteenth juror and decides which facts wereproven at trial" (People v Danielson, 9 NY3d at 348). Here, the evidence offered toestablish the defendant's identity as the assailant was equivocal and unconvincing. Only one ofthe six eyewitnesses proffered by the People affirmatively made an in-court identification of thedefendant as the assailant, and that witness qualified his identification by stating: "I am not100% positive . . . but I am pretty sure." Moreover, the out-of-court photographicidentifications did not prove the defendant's identity as the assailant beyond a reasonable doubt.Two witnesses were asked by the police to make an identification using a photographic arraycontaining six photos: one witness did not recognize the assailant in any of the photos and theother witness selected two photos of people who "kind of" looked like the assailant. Althoughone of the two photos was an image of the defendant, the witness told the police that theassailant "might be" the person in the other photo that was not the defendant. Two otherwitnesses were asked by the police to identify the assailant using a Middletown High Schoolyearbook: one witness identified the defendant as the assailant and the other witness (who wasthe only witness to later identify the defendant in court) did not recognize anyone. DetectiveThomas Miller testified that the investigation focused on the defendant because the vehicle fromwhich the assailant exited was traced to the defendant's address. The defendant admitted at trialthat he was present in the vehicle while the crimes took place, but contended that his cousin, whois similar in appearance, was the assailant. A photograph of the defendant's cousin wasintroduced into evidence. A second defense witness, whose physical description matched witnessdescriptions of a person at the scene of the crime, corroborated the defendant's testimony. Underthese circumstances, we conclude that the verdict of guilt was against the weight of the credibleevidence. Fisher, J.P., Dillon, Belen and Chambers, JJ., concur.