People v Battiste (Walter)

[*1] People v Battiste (Walter) 2015 NY Slip Op 50881(U) Decided on June 12, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 12, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570080/12

The People of the State of New York, Respondent,

against

Walter Battiste, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (John Cataldo,

J.H.O.), rendered January 11, 2012, after a nonjury trial, convicting him of violating New York City Parks and Recreation Department Rules (56 RCNY) § 1-05(s)(1), by being in an exclusive children playground, and imposing sentence.

Per Curiam.

Judgment of conviction (John Cataldo, J.H.O.), rendered January 11, 2012, reversed, on the law and the facts, accusatory instrument dismissed, and fine, if paid, remitted.

The underlying accusatory instrument charged defendant with violating New York City Parks and Recreation Department Rules (56 RCNY) § 1-05(s)(1), by being in an exclusive children playground unaccompanied by a child under the age of twelve. The police testimony elicited at the Summons Part trial showed that defendant was observed for a brief duration "playing chess" on a chess table in the West 92nd Street, City park at issue. The officer, while testifying that defendant was on the "backside of the jungle gym," in an exclusive children playground portion of the park, also testified that the chess table was "some distance away" from the playground. This testimony was, at best, equivocal and ambiguous as to area of the park that was restricted to the use of children and whether defendant was in such area (unaccompanied by a child), and upon our independent review of the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]), we find it to be insufficient to establish beyond a reasonable doubt that defendant was guilty of the underlying misdemeanor offense.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 12, 2015