People v. Wallace , 760 N.Y.S.2d 702 ( 2003 )

—Appeal from a judgment of Genesee County Court (Noonan, J.), entered March 4, 2002, convicting defendant after a jury trial of sexual abuse in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is reversed on the facts, the indictment is dismissed and the matter is remitted to Genesee County Court for proceedings pursuant to CPL 470.45. All findings of fact made by the jury that are inconsistent with the memorandum herein are hereby reversed and new findings are made pursuant to CPLR 5712 (c) as contained in the following memorandum: On appeal from a judgment convicting him after a jury trial of sexual abuse in the first degree (Penal Law § 130.65 [3]), defendant contends that the verdict is against the weight of the evidence. We agree. The resolution of credibility issues by the jury and its determination of the weight to be given to the evidence are accorded great deference (see People v Davis, 191 AD2d 705, 706 [1993]; People v Walker, 191 AD2d 603, 604 [1993], Iv denied 81 NY2d 1021 [1993]; People v Adams, 164 AD2d 546, 549 [1991], Iv denied 77 NY2d 957 [1991]). Nevertheless, reversal is warranted where the testimony “ ‘is incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory’ ” (People v Garafolo, 44 AD2d 86, 88 [1974]; see People v Black, 226 AD2d 1113 [1996], Iv denied 88 NY2d 1019 [1996]).

Defendant’s great niece testified that, on the afternoon of June 16, 2001, defendant and his wife visited her family at their home. According to the testimony of defendant’s great niece, defendant was seated with her on the living room couch when he allegedly put his hand under her dress and fondled her in front of her mother and his wife, among others. She gave conflicting testimony with respect to her position on the couch and with respect to whether she and defendant were playing a game called “top of the mountain” when the alleged incident occurred. Her mother testified to essentially the same facts, and she further testified that she was “very mad” when she allegedly saw defendant fondle her daughter. Nonetheless, she allowed her daughter to continue to play with defendant and did not say anything about the incident to defendant or his wife, despite the fact that they did not leave her home until approximately one hour later. Defendant’s great niece was not taken to a doctor, and a statement to police was not given until six days later.

Defendant testified that his great niece was never seated on the couch in the position alleged by her. He testified that he and his great niece were playing “top of the mountain” that afternoon and that he never lifted her dress, nor did he ever inappropriately touch or fondle her. Defendant’s wife corroborated defendant’s testimony regarding the great niece’s position on the couch, and she further testified that she never saw defendant lift the dress of her great niece and fondle her. The trial evidence was presented in less than one day, yet the jury deadlocked over the course of two days and sent numerous notes on issues of both fact and law. The jury rendered its verdict only after advising County Court that it was deadlocked, whereupon the court issued an Allen charge.

Upon our review of the evidence, we find that the evidence is both contrary to experience and self-contradictory (see Garafolo, 44 AD2d at 88) and that the jury “failed to give the evidence the weight it should be accorded” (People v Bleakley, 69 NY2d 490, 495 [1987]). Thus, reversal is required.

All concur except Scudder, J., who dissents and votes to affirm in the following memorandum.