By: Weston, J.P., Elliot, Siegal, JJ. Appellate Advocates (Alice R. B. Cullina of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Ann Bordley, Seth M. Lieberman and Dmitriy Povazhuk of counsel), for respondent.
2016-536 K CR. PEOPLE v. LOUIE W. (ANONYMOUS) — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Rosemarie Montalbano, J.), rendered February 4, 2016. The judgment, after a nonjury trial, adjudicated defendant a youthful offender upon a verdict finding him guilty of reckless endangerment in the second degree, criminal mischief in the fourth degree, endangering the welfare of a child, menacing in the third degree and harassment in the second degree, and imposed sentence. The appeal brings up for review an order of that court (Michael Gerstein, J.) dated July 9, 2015 denying defendant’s motion to dismiss the accusatory instrument on statutory speedy trial grounds. ORDERED that the judgment adjudicating defendant a youthful offender is reversed, on the facts, and the accusatory instrument is dismissed. On April 6, 2014, defendant was arraigned on a misdemeanor accusatory instrument charging him with reckless endangerment in the second degree (Penal Law §120.20), criminal mischief in the fourth degree (Penal Law §145.00 [1]), endangering the welfare of a child (Penal Law §260.10 [1]), menacing in the third degree (Penal Law §120.15) and harassment in the second degree (Penal Law §240.26 [1]). After a bench trial, the court, as factfinder, found defendant guilty of all charges and adjudicated him a youthful offender. At the trial, the complainant and his brother, Marcelo, were the sole witnesses for the prosecution. The complainant testified that he and defendant’s girlfriend, Felicia, had a 16-month-old child in common. On March 21, 2014, the complainant learned that Felicia and their child were at the home of defendant, whom the complainant had not met previously. The complainant explained that he “was letting [Felicia] take my daughter once in awhile, but I wasn’t aware she was taking her to [defendant's] house…I don’t think Felicia should be bringing [my daughter] over there.” The complainant “didn’t have a reason, a set reason…why she should not be there. That was my personal opinion and feeling.” The complainant drove himself, Marcelo, and a third male to defendant’s Kings County home in a rental car. While driving, the complainant called the 9th Precinct of the New York City Police Department with his cell phone. He testified that a police officer told him that “I could not retrieve my daughter without a police officer on hand.” However, before a police unit arrived, the complainant saw Felicia and their daughter walking with defendant. The complainant testified that he “got out of the car, and I asked [Felicia] why is she over here with my daughter. Give me my daughter. [Felicia] then says, ‘No, no.’ So I walk over. I go take my daughter. We begin tussling and wrestling for my daughter.” Marcelo’s testimony concurred with his brother’s; he testified that the complainant “gets out [of the car]…Felicia picks her [daughter] up. My brother is trying to take her back…So they start struggling.” Marcelo also recalled the complainant telling Felicia, “You know [our daughter] is not supposed to be over here.” According to the brothers, the complainant and Felicia fought near to, and inside of, the complainant’s rental car over their child. The complainant testified that defendant attempted to punch him, but missed repeatedly. Marcelo testified, however, that defendant never tried to punch the complainant. The brothers did agree that defendant brought a pit bull dog and placed it into the car. Marcelo testified that he responded by pulling a baseball bat out of the trunk of the rental car. However, seeing that the dog was in no way aggressive, Marcelo did not swing it. Eventually, the complainant, Marcelo, who was holding the child, and the third male, who was not involved in the fighting, were able to return to the car. The brothers each testified that defendant called out, and a crowd of people rushed at the car as the complainant drove off. The complainant testified that, as he drove away, he looked behind and saw defendant throw an unknown object that shattered the back windshield, but which object did not land inside of the car. Marcelo testified that, from his vantage point sitting in the back seat, he saw the complainant look forward while driving, and not turn his head around until after the windshield shattered. Defendant, Felicia and defendant’s friend, Ashley, each testified that defendant was only attempting to protect Felicia and her daughter from being abducted by strangers whom he did not know. Defendant and Ashley testified that defendant did not throw anything at the complainant’s car. They asserted that Marcelo swung the baseball bat at defendant, missed and smashed the back windshield. The defense witnesses also disputed the claim that defendant called out to a crowd of people, who attacked the complainant’s car. Ashley, who had been walking her pit bull on a leash with defendant, Felicia and her daughter, testified that her dog was old and slow, and that she never relinquished control of the dog to defendant. Defendant and Felicia called the police immediately after the incident, but the complainant did not. Rather, he testified, “[t]he police called me, and they told me I had to bring my daughter back, because I basically kidnapped her. I went [to the precinct] and told them what happened, and that’s when I filed a report.” On appeal, defendant asserts, inter alia, that the guilty verdict was based upon legally insufficient evidence, and was against the weight of the evidence. We find that the evidence adduced at trial was legally sufficient to support the guilty verdict, as it was “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof” (CPL 70.10; see People v. Dubarry, 25 NY3d 161, 178 [2015], quoting People v. Hines, 97 NY2d 56, 62 [2001]; People v. Gordon, 23 NY3d 643, 649 [2014]; People v. Contes, 60 NY2d 620, 621 [1983]). However, we agree that the guilty verdict was against the weight of the evidence (see People v. Sergio, 99 AD3d 734 [2012]; People v. Zephyrin, 52 AD3d 543 [2008]; People v. Jalloh, 44 Misc 3d 129[A], 2014 NY Slip Op 50985[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). The complainant admitted that he had instigated the confrontation with Felicia, based upon his self-proclaimed authority to dictate where she could go with their daughter. He brought his brother and a third male with him to look for them. Also, they brought a baseball bat that neither the complainant nor his brother gave an innocent explanation for keeping in the trunk of the rental car. He ignored the police officer’s explicit warning to not attempt to take his daughter on his own. Instead, he fought with Felicia as she held the 16-month old, and he pulled her from her mother’s arm. Thus, blame for causing the chaotic physical altercation that ultimately could have injured the child rests with the complainant, not defendant. The prosecution failed to prove beyond a reasonable doubt that defendant was not justified in acting to protect Felicia and the child from being forcibly taken by a man whom defendant did not know (see Penal Law §§25.00 [1]; 35.00). Additionally, the prosecution witnesses’ claim that defendant threw an object heavy enough to break the back windshield, without traveling into the car, is incredible. Marcelo directly contradicted the complainant’s claim that he saw defendant throw the object. Further, the defense witnesses’ consistent testimony that Marcelo accidentally shattered the windshield with the baseball bat is a more reasonable explanation. Also calling into question the prosecution witnesses’ credibility is the fact that, while defendant and Felicia called 911 immediately after the incident, the complainant did not contact 911 for police assistance, or for medical attention for his 16-month-old daughter (see People v. Koltun, 163 AD3d 720 [2018]; People v. Viera, 133 AD3d 622, 624 [2015] ["Certain post crime conduct is [viewed as] indicative of consciousness of guilt”] [internal quotation marks omitted]). Pursuant to the doctrine of falsus in uno falsus in omnibus, the prosecution witnesses’ claims, that defendant placed a dog in the complainant’s car and summoned a crowd to attack the complainant, are suspect at best. It is noteworthy that the complainant repeatedly acted in ways that belied his claim that his daughter’s safety was his sole motivator. He ignored the police and initiated a physical confrontation that could have brought harm to her. Afterwards, he did not seek medical attention for her. And, while the complainant chose to bring a baseball bat, he did not have the forethought to bring a car seat for his 16-month-old child. In sum, we cannot agree that the People proved beyond a reasonable doubt that defendant committed, or committed without appropriate justification, each of the charged offenses. As our determination, that the guilty verdict was against the weight of the evidence, is dispositive, the remainder of defendant’s appellate points are rendered academic, and we do not pass upon them. Accordingly, the judgment adjudicating defendant a youthful offender is reversed and the accusatory instrument is dismissed. WESTON, J.P., ELLIOT and SIEGAL, JJ., concur. February 21, 2020
