| People v Madison |
| 2009 NY Slip Op 03014 [61 AD3d 777] |
| April 14, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JasonMadison, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Elizabeth L. Guinup and Andrew R.Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.),rendered October 20, 2004, convicting him of sexual abuse in the third degree (two counts) andendangering the welfare of a child, after a nonjury trial, 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 11-count indictment alleged that the defendant, inter alia, raped and sexually abused thetwo teenage complainants on separate occasions. The two complainants were friends of thedefendant's younger sister. Both complainants admitted at trial that they intentionally cutthemselves with sharp objects, and there was testimony that they had, on occasion, done so in thedefendant's home. The defendant's mother testified that, on or about November 4, 2003, shereported to the school authorities that the first complainant cut herself and, on November 7,2003, she told the second complainant's mother about the cutting. After this, the defendant'smother began receiving telephone calls from the complainants, who accused her of reportingtheir behavior to Child Protective Services and made threats against her and her family. OnNovember 24, 2003 the first complainant reported to the police that she had been sexuallyassaulted by the defendant sometime between August 2003 and September 2003. On December4, 2003 the second complainant brutally attacked the defendant's younger sister at school andwas arrested. Once in [*2]custody, she told the police that thedefendant had sexually assaulted her on two occasions in November 2003.
At trial, the complainants gave the only testimony that the alleged sexual assaults had beencommitted. Neither account was corroborated by other testimony or physical evidence. Thedefendant took the stand and denied the allegations. The defense also introduced evidence thatthe first complainant told another teenager during an "instant messenger" conversation that shehad attempted to get the second complainant to join her in fabricating rape allegations against thedefendant as an alternative to attacking his sister.
After a nonjury trial, the defendant was acquitted on all counts relating to the secondcomplainant. With respect to the counts relating to the first complainant, the defendant wasacquitted of rape in the second degree (see Penal Law § 130.30 [1]), but foundguilty of sexual abuse in the third degree (two counts) (see Penal Law § 130.55)and endangering the welfare of a minor (see Penal Law § 260.10 [1]). This appealensued.
Upon the exercise of our independent factual review power (see CPL 470.15 [5]), wefind that the verdict of guilt was against the weight of the evidence. "[W]eight of the evidencereview 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 [trier of fact] was justified infinding the defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 348 [2007]; see People vBleakley, 69 NY2d 490 [1987]; People v Bornhoeft, 53 AD3d 666 [2008]). "[T]he appropriatestandard for evaluating [a] weight of the evidence argument is the same, regardless of whetherthe fact finder was a judge or jury" (People v Zephyrin, 52 AD3d 543, 543 [2008]). Under thecircumstances here, we find that an acquittal would not have been unreasonable and further findthat the weight of the credible evidence was against the verdict (cf. People v Zephyrin,52 AD3d at 543-544; People vFranco, 11 AD3d 710 [2004]). Mastro, J.P., Dillon, Leventhal and Chambers, JJ.,concur.