| People v St. Andrews |
| 2011 NY Slip Op 01744 [82 AD3d 1356] |
| March 10, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Jimmy Joe St. Andrews, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered April 3, 2009, upon a verdict convicting defendant of the crime ofendangering the welfare of a child.
Defendant was charged with four counts of unlawfully dealing with a child in the firstdegree, six counts of endangering the welfare of a child and four counts of criminal nuisance inthe second degree in connection with several underage drinking parties alleged to have occurredeither at his property or in his presence. Defendant's wife was charged with similar crimes andthe two were tried jointly. Prior to and during the trial, County Court dismissed several counts,ultimately submitting to the jury, as pertains to defendant, only three counts of endangering thewelfare of a child. The jury convicted him of only one count, relating to a party that occurred ondefendant's property on April 20-21, 2008. Defendant, who was sentenced to 60 days in jail andthree years of probation, now appeals.
Although the evidence was legally sufficient, the conviction was against the weight of theevidence. A female teenager testified that while she was attending the party on defendant'sproperty, a man she assumed was defendant yelled at her for riding on a child's toy. At the time,she had a beer in her hand. A male teenager testified that defendant was outside the house at one[*2]time while several young people were at the party drinkingalcohol and that none of the young people made any efforts to conceal their drinking. Thisevidence was sufficient to show that defendant was aware that several individuals under the ageof 17, who were invited onto his property, were consuming alcohol on his property and in hispresence and he allowed the situation to continue, thereby endangering their welfare.
On the other hand, a weight of the evidence review requires us to independently assess theevidence and, if a different verdict would not have been unreasonable, weigh the probative forceof conflicting testimony and resulting inferences (see People v Jones, 59 AD3d 864, 866 [2009]; People vKing, 265 AD2d 678, 679 [1999], lv denied 94 NY2d 904 [2000]). Almost all of thewitnesses testified that defendant was not outside on the night of the party. Many witnessestestified that defendant went to bed between 7:00 p.m. and 7:30 p.m. and did not go outside againuntil he left for work the next morning. The female teenager who rode the child's toy testifiedthat she could not identify the man who yelled at her and that it was "really dark" at the time.This rendered it unlikely that the man—who may or may not have beendefendant—could see the beer can in her hand. The male teenager testified that he sawdefendant outside playing with his grandchildren at a time when it was still light out. Otherevidence contradicted this witness's statement that people were drinking at that time. Even if weaccept his testimony, he stated that he and a few other young people were drinking near the firepit, which was located on defendant's property but at a distance of approximately 100 to 200 feetfrom defendant's house. There was no proof that defendant went near the fire pit. It is onlyspeculation that defendant would notice beer cans at that distance while he was tending to histwo grandchildren, who were both less than five years old. Defendant testified that he did not yellat a female for riding on a child's toy and did not see anyone drinking alcohol on the evening ofthe party.
The testimony of the two witnesses who placed defendant outside that night did not establish,beyond a reasonable doubt, defendant's knowledge or awareness that underage individuals weredrinking alcohol. We recognize that the jury's credibility determinations should not be disturbedunless clearly unsupported by the record (see People v Jones, 59 AD3d at 867).Considering the testimony from numerous witnesses that defendant was not present outside onthe night of the party, along with the weak and speculative nature of the testimony from the twowitnesses who placed him outside, it is our obligation to set aside the verdict as against theweight of the evidence (see People vO'Neil, 66 AD3d 1131, 1132-1134 [2009]; People v Jones, 59 AD3d at 867).
Rose, Kavanagh and Egan Jr., JJ., concur; Cardona, P.J., not taking part. Ordered that thejudgment is reversed, on the facts, and indictment dismissed.