People v Jalloh (Ahmed)

[*1] People v Jalloh (Ahmed) 2014 NY Slip Op 50985(U) Decided on June 18, 2014 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and SOLOMON, JJ.
2010-10 K CR

The People of the State of New York, Respondent,

against

Ahmed Jalloh, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Michael A. Gary, J.), rendered November 10, 2009. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree.

ORDERED that the judgment of conviction is reversed, on the facts, the information is dismissed, and the surcharge, if paid, is remitted.

Defendant was charged with assault in the third degree (Penal Law § 120.00 [1]), menacing in the third degree (Penal Law § 120.15) and harassment in the second degree (Penal Law § 240.26 [1]). At a nonjury trial, the complainant testified that she, her husband and her five-year-old son shared an apartment with defendant and another adult male. She described how defendant had struck her about the face and body, kicked her with his work boots, and bit her, over a period of about half an hour, while her husband and the other male roommate stood idly by, although the complainant's five- year-old son attempted to protect his mother. The medical report following the incident made no mention of bite marks or any visible bruising or injuries, in spite of the alleged half-hour attack. Both the complainant and her husband testified that they were involved in an ongoing dispute with defendant, who had been refusing to pay his share of the rent and other bills because the complainant and her husband had refused to pay defendant money he claimed they owed him.

Following the trial, defendant was found guilty of harassment in the second degree (Penal Law § 240.26 [1]). On appeal, defendant contends that the verdict was against the weight of the evidence.

Upon the exercise of our factual review power (see People v Danielson, 9 NY3d 342 [2007]; People v Romero, 7 NY3d 633 [2006]; People v Bleakley, 69 NY2d 490 [1987]), we find that the testimony of the complainant and her husband was implausible and contradictory. As there was no evidence, beyond the testimony of the complainant and her husband, to support defendant's conviction, we find that the judgment of conviction was against the weight of the evidence (see People v Zephyrin, 52 AD3d 543 [2008]; People v Giocastro, 210 AD2d 254 [1994]).

Accordingly, the judgment of conviction is reversed, the information is dismissed, and the surcharge, if paid, is remitted.

Weston, J.P., Aliotta and Solomon, JJ., concur.

Decision Date: June 18, 2014