People v. Cantres

Murphy, P. J. (dissenting).

Although I agree with the majority that the evidence is sufficient as a matter of law to support the conviction, I cannot agree that the conviction accords with the weight of the evidence.

The crucial facts would appear to me to be these: Ms. Brooks, a completely disinterested witness, testified that during the minutes preceding the shooting she rode with the defendant to the eighth floor of the building in which they both lived. When the elevator door opened, Ms. Brooks observed the victim in conversation with the main prosecution witness, Coles. Ms. Brooks got out of the elevator, leaving the defendant behind, and walked to her apartment quickly; she remembered that *63she walked quickly because she had to go to the bathroom. As she entered her apartment she heard a gunshot, presumably the shot that took the victim’s life. Reduced to its essentials, the scenario advanced by the prosecution in reliance upon Coles’s testimony was that in the very brief interval between Ms. Brooks’s alighting from the elevator and her arrival at her apartment, the defendant rode in the elevator up to the ninth floor, got out and ran down the hall to the stairwell, descended to the eighth floor landing, inserted a shotgun into the victim’s mouth and shot him. With all due respect to the majority, this does not seem to me a probable scenario. Indeed, it seems highly improbable and is particularly suspect given its testimonial source, Coles. Coles, who was admittedly intoxicated during the events in question, having recently consumed 40 ounces of beer and two vials of crack, had a clear motive to fabricate; in the absence of evidence implicating someone else in the shooting he would have been the most likely suspect. He had, after all, been seen with the victim just moments before the fatal shot was fired.

Although the majority does not rule expressly upon the point, it is clear that this is a case in which there is a reasonable view of the evidence supportive of an outcome contrary to that reached by the trier of fact and, accordingly, that this Court’s unique obligation to " 'weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” (People v Bleakley, 69 NY2d 490, 495, quoting People ex rel. MacCracken v Miller, 291 NY 55, 62) has been triggered. As a preliminary matter relevant to the discharge of that obligation, I note that although it is initially the fact finder’s prerogative to weigh the evidence and make credibility determinations, and although a large measure of deference is generally due the fact finder on appellate review, weight of the evidence review entails some, albeit circumspect (People v Bleakley, supra at 495), displacement of the fact finder by an intermediate appellate court: "To determine whether a verdict is supported by the weight of the evidence, however, the appellate court’s dispositive analysis is not limited to that legal test [legal sufficiency]. Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further. 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 *64the relative strength of conflicting inferences that may be drawn from the testimony’ [citations omitted]. 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 (CPL 470.20 [2])” (supra, at 495 [emphasis added]).

The careful discharge of our duty in this case to afford the defendant an appellate review of the factual predicate offered in support of his conviction leads, I believe, to the conclusion that the verdict did not comport with the weight of the evidence. The inculpatory tale told by Coles was inherently improbable; it strains credulity beyond breaking to believe that the defendant did all that Coles said he did within the narrow time frame so convincingly established in the testimony of Ms. Brooks. Indeed, it is only by preferring the testimony of Coles, a witness whose credibility was suspect on numerous serious counts, to that of Ms. Brooks, a completely disinterested witness with an evidently clear and specific recollection of the crucial circumstance that, for a very convincing reason, she moved speedily between the elevator and her apartment, that one might harmonize the evidence with the verdict. Yet, it would seem to me that it is precisely such an artificially and irrationally selective view of the evidence that our weight of the evidence review power exists to curtail.

Accordingly, the conviction should be reversed and the indictment dismissed.

Wallach, Nardelli and Tom, JJ., concur with Colabella, J.; Murphy, P. J., dissents in a separate opinion.

Judgment, Supreme Court, Bronx County, rendered July 18, 1995, affirmed.