Appeal by defendant from a judgment of the Criminal Court, Queens County (J. Latella, J.), rendered January 10, 2003, after a bench trial, convicting him of attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), attempted possession of a weapon in the third degree (Penal Law §§ 110.00, 265.01 [2]) and harassment in the second degree (Penal Law § 240.26 [1]), and imposing sentence.

Judgment of conviction unanimously reversed on the facts and accusatory instrument dismissed.

A review of the record indicates that the trial court drew negative inferences from the People's failure to produce certain evidence, provide Rosario material and to call a particular witness to the stand. Notwithstanding the foregoing, the trial court found the defendant guilty. Upon the exercise of our power of factual review (see CPL 470.15 [5]; People v Bleakley, 69 NY2d 490, 495 [1987]), we find that the verdict of guilty was against the weight of the evidence. Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
Decision Date: March 05, 2004