| People v Gonzalez |
| 2011 NY Slip Op 04700 [84 AD3d 1400] |
| May 31, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Evaristo J. Gonzalez, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.),rendered April 26, 2010, convicting him of endangering the welfare of a child, upon a juryverdict, 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 indictment charged the defendant with two counts of criminal sexual act in the thirddegree, one count of incest in the third degree, and one count of endangering the welfare of achild. All of the charges were premised upon allegations by the complainant, the defendant'sniece, that he performed oral sex upon her. Following a jury trial, the defendant was acquitted ofthe first three counts and convicted of the fourth count, endangering the welfare of a child.
Upon the exercise of our factual review power (see CPL 470.15 [5]), we find that theconviction is against the weight of the evidence. " '[W]eight of the evidence review requires acourt first to determine whether an acquittal would not have been unreasonable. If so, the courtmust weigh conflicting testimony, review any rational inferences that may be drawn from theevidence and evaluate the strength of such conclusions. Based on the weight of the credibleevidence, the court then decides whether the [trier of fact] was justified in finding the defendantguilty beyond a reasonable doubt' " (People v Madison, 61 AD3d 777, 778 [2009],quoting People v Danielson, 9 NY3d 342, 348 [2007]).
Applying that standard of review, an acquittal on all charges would not have beenunreasonable based upon the evidence presented. Moreover, the jury failed to accord theevidence the weight it should have been accorded (see People v Romero, 7 NY3d 633[2006]). It is clear that the jury acquitted the defendant with respect to the first three counts basedon its determination that the complainant's testimony regarding the defendant's conduct was notcredible. Since there was no evidence to support the defendant's conviction of endangering thewelfare of a child other than the testimony of the [*2]complainant, we reverse that conviction as against the weight of theevidence (see People v Otway, 71 AD3d 1052, 1053-1054 [2010]; People vMadison, 61 AD3d 777 [2009]; People v Zephyrin, 52 AD3d 543 [2008]; Peoplev Franco, 11 AD3d 710 [2004]).
The defendant's remaining contentions have been rendered academic in light of ourdetermination. Covello, J.P., Eng, Leventhal and Cohen, JJ., concur.