People v Messina (Alfonso)

[*1] People v Messina (Alfonso) 2010 NY Slip Op 51465(U) [28 Misc 3d 138(A)] Decided on August 13, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and IANNACCI, JJ
2009-9 N CR.

The People of the State of New York, Respondent,

against

Alfonso Messina, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Tricia M. Ferrell, J.), rendered October 27, 2008. The judgment convicted defendant, upon a jury verdict, of criminal contempt in the second degree.

ORDERED that the judgment of conviction is reversed, on the facts, and the accusatory instrument dismissed.

In this prosecution for criminal contempt in the second degree (Penal Law
§ 215.50 [3]), defendant was convicted, after a jury trial, of violating an order of protection on July 1, 2007, which order, among other things, directed defendant to stay away from his son, the complainant.

While we accord great deference to the factfinder's determinations, particularly with respect to issues of credibility (see People v Mateo, 2 NY3d 383, 410 [2004]), nevertheless, upon a review of the record, we are of the opinion that the verdict of guilt was against the weight of the evidence. We do not find that the evidence at trial established, beyond a reasonable doubt, that defendant intentionally violated the order of protection issued on behalf of defendant's son (Penal Law § 215.50 [3]).

Accordingly, the judgment of conviction is reversed and the accusatory instrument dismissed. In light of our decision, we do not reach defendant's remaining contentions.

Nicolai, P.J., Tanenbaum and Iannacci, JJ., concur.
Decision Date: August 13, 2010