
    [779 NYS2d 881]
    The People of the State of New York, Respondent, v Ruth Gonzalez, Appellant.
    Supreme Court, Appellate Term, First Department,
    April 21, 2004
    
      APPEARANCES OF COUNSEL
    
      John H. Wilson, New York City, for appellant. Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington and Hae Jin Liu of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Judgment of conviction rendered November 20, 2000 reversed, on the facts and as a matter of discretion in the interest of justice, and the accusatory instrument is dismissed.

This criminal prosecution stems from an altercation between two neighboring residents of a Bronx apartment building. It is alleged that on November 25, 1998, at approximately 10:00 p.m., defendant Ruth Gonzalez stabbed the complainant with a knife — a knife never recovered or produced — while the two argued over a possible water leak in the defendant’s third-floor apartment that the complainant believed had seeped into her second-floor unit. Following a nonjury trial, defendant was acquitted of each of the misdemeanor charges facing her— including counts of menacing, attempted assault, and attempted weapon possession — but was convicted of second degree harassment (Penal Law § 240.26 [1]), a violation.

In view of the “seriously disturbing aspects of this case” (People v Nickerson, 175 AD2d 74, 76 [1991]), where the evidence clearly shows that it was the complainant who provoked and escalated the underlying altercation by repeatedly knocking at the defendant’s apartment door late at night, conduct which the prosecutor acknowledged on summation may have been “too persistent”; where the People failed to adequately explain their inability to produce the knife allegedly used by defendant or the leather jacket worn by the complainant that the (unrecovered) knife allegedly “went through”; and where defendant’s acquittal on each of the remaining charges, even if not repugnant to her conviction on the harassment count predicated on the identical trial theoiy (compare People v Crane, 242 AD2d 783 [1997]), tends to indicate that the trial court “did not credit the complainant’s story in toto” (People v Roman, 217 AD2d 431, 432 [1995] [internal quotation marks omitted]), we find it appropriate to exercise our statutory authority to reverse defendant’s conviction of second degree harassment as against the weight of the evidence and in the interest of justice (CPL 470.15 [3] [b], [c]).

While the prosecution may have established, that the complainant received as many as eight stitches as the result of a knife wound at some point during the night in question, no persuasive showing was made that the wound was inflicted by this defendant — a 33-year-old home health aide who had no criminal background and who had led an otherwise unblemished, even exemplary, life. On this record, which contains many indicia of the complainant’s unreliability as a witness, including her acknowledged use of antidepressive medication and her admittedly agitated state at the time of the incident due to what she described as “the TV and ... all the pressure,” a finding that the knife wound did not occur as alleged during the complainant’s housing-related quarrel with the defendant “would not have been unreasonable” (People v Bleakley, 69 NY2d 490, 495 [1987]). Nor was a solid evidentiary basis for a finding that defendant stabbed the complainant — the sole factual predicate underlying this prosecution — provided in the often inconsistent and evasive testimony of the complainant’s adult son who, although in close proximity to the disputants during the altercation, stopped short of saying that he saw an “actual stabbing.”

“[0]n balance we are left with a very disturbing feeling that guilt has not been satisfactorily established; that there is a grave risk that an innocent [woman] has been convicted; and that we should therefore not let this conviction stand.” (People v Kidd, 76 AD2d 665, 668 [1980], lv dismissed 51 NY2d 882 [1980].)

McCooe, J.

(dissenting). The substance of the charge is that on November 25, 1998 at approximately 10:00 p.m., the defendant stabbed the complainant in a dispute over a water leak. The Bronx Lebanon Hospital records state that the complainant arrived at 11:13 p.m. on the same night; she required eight stitches for a three-inch stab wound from a knife and that the incident was reported to the police. Giving proper effect to the unassailable hospital records and apparently crediting the testimony of the prosecution witnesses, the experienced trial judge convicted defendant, after a full and fair trial, of harassment in the second degree, while acquitting defendant of other charges.

Defendant’s central appellate argument, adopted by the majority, is that the verdict was against the weight of the evidence. The appropriate standard for weight of the evidence review is set forth in People v Bleakley (69 NY2d 490, 495 [1987]).

“If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ . . . If it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict.”

The Bleakley weight of the evidence review standard does not provide an open invitation for an appellate court to substitute its judgment for that of the factfinder, for the decision goes on to caution that “[g]reat deference [be] accorded to the fact-finder’s opportunity to view the witnesses, hear the testimony and observe demeanor.” (Id. at 495; see also, People v De Tore, 34 NY2d 199, 206 [1974].)

Thus, viewing the evidence in this case in a neutral light, and giving appropriate deference to the factfinder’s superior ability to assess credibility and weigh competing inferences, I conclude that the verdict was not against the weight of the evidence. The complainant and her son both testified that they saw the kitchen knife in the defendant’s hand and it is undisputed that the complainant was in the hospital approximately 1 hour and 13 minutes after the occurrence. The majority’s argument is that there was “no persuasive showing” that the defendant inflicted the wound. The testimony of the complainant and her son together with the short time interval between the incident and the hospital visit supports the trial court’s findings that defendant stabbed the complainant.

The fact that the defendant was not convicted on all the charges does not establish that the court did not accept the complainant’s version of the incident. “The court’s verdict was apparently motivated by leniency. A ‘compromise’ verdict is not to be condoned, but is not a ground for reversal, provided that the verdict is not repugnant as a matter of law. The verdict here is not repugnant . . .” (People v Martinez, 201 AD2d 671, 672 [1994], lv denied 83 NY2d 874 [1994] [citations omitted]; see also People v Rayam, 94 NY2d 557 [2000]).

The judgment of conviction should be affirmed.

Davis and Gangel-Jacob, JJ., concur; McCooe, J.E, dissents in a separate memorandum. 
      
       The witness acknowledged that he had a prior drug-related conviction and that, as of the time of trial, he was awaiting sentence on “domestic violence” charges to which he had pleaded guilty.
     