| People v Ya-ko Chi |
| 2010 NY Slip Op 02976 [72 AD3d 709] |
| April 6, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ya-ko Chi, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Laura T. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gavrin,J.), rendered September 7, 2007, convicting him of assault in the second degree (two counts),after a nonjury trial, and imposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the SupremeCourt, Queens County, for a new trial.
On June 25, 2005, Guillermo Alfonso Moralez Chacon (hereinafter Moralez) was stabbed onthe street near a bodega in Queens. Moralez testified that the defendant, whom he knew from theneighborhood, was the person who stabbed him. Although initially he did not correctly identifythe defendant at trial, he eventually did identify the defendant as his assailant.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we accord great deference to the factfinder's opportunity at the trial to view thewitnesses, hear their testimony, observe their demeanor and assess their credibility (seePeople v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]; People vFortunato, 70 AD3d 851 [2010]; People v Madison, 61 AD3d 777, 779 [2009]).
However, a new trial is required because of the Supreme Court's improper admission intoevidence, over the defendant's objection, of Moralez's testimony that a relative of the defendantgave him $5,000 not to testify and also offered him additional money. Here, there was noshowing that the defendant participated in the alleged attempt by his relative to interfere withMoralez's testimony at trial (see People v Brooks, 292 AD2d 540, 541 [2002]; Peoplev Ramdowe, 204 AD2d 663, 664 [1994]). This inflammatory evidence was not admissible toimpeach the credibility of the People's own witness, or to infer the defendant's guilt (cf.People v Fitzpatrick, 40 NY2d 44, 49-50 [1976]; People v Freeman, 9 NY2d 600,603 [1961]; People v Brazzeal, 172 AD2d 757 [1991]).[*2]
Although the trial court in a nonjury trial is presumed tohave considered only competent evidence in reaching its verdict (see People v Kozlow, 46 AD3d913, 916 [2007]; People v Walker, 175 AD2d 146, 147 [1991]; People vSims, 127 AD2d 805, 806 [1987]; People v Reyes, 116 AD2d 602, 603 [1986]),here, this presumption was rebutted when further testimony on the subject was permitted andelicited by the trial court. Under the particular factual circumstances of this case, where theevidence of the defendant's guilt was not overwhelming, this error was not harmless and requiresreversal (see People v Crimmins, 36 NY2d 230 [1975]; People v Wilkinson, 71 AD3d 249[2010]; People v Thomas, 68 AD3d1141 [2009]). Fisher, J.P., Covello, Lott and Sgroi, JJ., concur.