| People v McMitchell |
| 2013 NY Slip Op 06713 [110 AD3d 923] |
| October 16, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Wayne McMitchell, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and KeithDolan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Sullivan, J.), rendered August 22, 2011, convicting him of course of sexual conductagainst a child in the second degree, sexual abuse in the second degree (two counts),endangering the welfare of a child (three counts), menacing in the second degree, andharassment in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the facts, the indictment is dismissed, andthe matter is remitted to the Supreme Court, Kings County, for further proceedingsconsistent with CPL 160.50.
The defendant was convicted, after a jury trial, of one count of course of sexualconduct against a child in the second degree, two counts of sexual abuse in the seconddegree, three counts of endangering the welfare of a child, one count of menacing in thesecond degree, and one count of harassment in the second degree in connection withallegations against him by his two stepdaughters. Upon fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15;People v Romero, 7 NY3d633 [2006]), we agree with the defendant that the verdict of guilt on all of thesecounts was against the weight of the evidence.
In conducting our weight-of-the-evidence analysis, we must first determine, basedupon the credible evidence, whether a different result would have been unreasonableand, if it would not have been, then we must " 'weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony' " (People v Bleakley, 69 NY2d 490, 495 [1987],quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]; see People v Danielson, 9NY3d 342, 348 [2007]). Applying this principle to the evidence adduced at thedefendant's trial, we determine, in the first instance, that acquittal of all the chargessubmitted to the jury would not have been unreasonable based upon the evidencepresented and, moreover, that the jury failed to accord the evidence the weight it shouldhave been accorded (see Peoplev Romero, 7 NY3d 633 [2006]). The testimony of the prosecution's witnessesfailed to provide a credible foundation for the defendant's convictions due to numerousinconsistencies and contradictions.
At trial, the People presented testimony from the defendant's two stepdaughters, then[*2]17 and 16 years old, that the defendant hadcommitted sexual acts against them. The younger stepdaughter testified that the allegedabuse occurred approximately twice per week between 2000 and 2004, starting when shewas 5 years old and continuing until she was 9 years old. The older stepdaughter testifiedto three incidents of abuse, one in 2006 and two in 2008, when she was approximately 12and 14 years old, respectively. All of the alleged abuse against the stepdaughters tookplace in their mother's home. The older stepdaughter testified that, in October 2009,several months after the last incident of alleged abuse, she told her mother about thedefendant's abuse. In December 2009, the mother contacted the police so that they couldinvestigate her daughter's allegations. Subsequently, in March 2010, the mother learnedthat the younger stepdaughter had allegedly also been abused, and she again contactedthe police.
However, the prosecution's witnesses testified that the defendant and the motherseparated in 2002, and, at the time, the defendant had already moved out of the homewhere the abuse allegedly took place. Thus, many of the alleged incidents of abuse tookplace after the defendant had moved out of the home and no longer had a key to it. From2003 to 2005, a restraining order that the mother obtained against the defendant was ineffect, and the mother confirmed that, during one period of time in 2004, the defendantconducted all of his visits with the children outside of the home. The testimony of theprosecution's witnesses was generally inconsistent as to whether, during the other visits,the defendant stayed alone with the children in the mother's home, or whether thegrandmother or the mother was always present. In any event, although the youngerstepdaughter alleged that the defendant molested her twice per week between 2000 and2004, the trial testimony clearly established that the defendant's access to the childrenwas often limited after he moved out of the mother's home in 2002.
The evidence further established that, after 2002, the defendant met another womanwith whom he had two children. The mother testified that she and the defendant had acontentious relationship after they separated and that, when they were fighting, thedefendant was not allowed to see his stepchildren or the three biological children he alsohad with the mother.
Moreover, although according to the mother's testimony she had known about thealleged abuse of her oldest daughter since October 2009, she did not contact the policeuntil December 2009, close to the time that the father filed a petition for custody andvisitation. Subsequently, in March 2010, shortly before the father was to appear inFamily Court in connection with the custody and visitation proceeding, the mother againcontacted the police, this time regarding the defendant's alleged abuse of the youngerstepdaughter. Although the mother testified that the timing was merely coincidental, theprosecution's expert testified that the parties to custody and visitation disputes commonlymake false allegations of sexual abuse. In addition, the mother testified that she informedher oldest daughter that the defendant was not her biological father on the same day thatshe called the police about the alleged abuse; up until that point, both stepdaughters hadbelieved that the defendant was their biological father.
Notably, the mother and the older stepdaughter gave differing accounts of the latter'sreport of the alleged abuse. While the older stepdaughter testified that she blurted out toher mother over the phone that the defendant had sexually abused her and was relieved tohave finally told her, the mother testified that she was informed of the alleged abuse bythe mother of the older stepdaughter's boyfriend. The mother testified that, when sheconfronted the older stepdaughter, the latter did not want to talk about it.
Given the contradictory and inconsistent testimony of the prosecution's witnesses, wefind that the evidence does not credibly support the defendant's conviction on any of thecharges beyond a reasonable doubt. Accordingly, we reverse the judgment of convictionas against the weight of the evidence, and dismiss the indictment (see People v Nisthalal, 87AD3d 702 [2011]; People vFortunato, 70 AD3d 851 [2010]; People v Zephyrin, 52 AD3d 543 [2008]; People vGiocastro, 210 AD2d 254 [1994]).
In light of our determination, we need not consider the defendant's remainingcontentions. Angiolillo, J.P., Hall, Austin and Miller, JJ., concur.