Appeal from a judgment of the Justice Court of the Town of Southeast, Putnam County (James W. Borkowski, J.), rendered September 8, 2004. The judgment adjudicated defendant a youthful offender, after a non-jury trial, based on the underlying charges of arson in the fifth degree, criminal mischief in the fourth degree and reckless endangerment in the second degree.

Judgment adjudicating defendant a youthful offender reversed on the facts, and accusatory instrument dismissed.

Defendant's assertion that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). Upon our review of the evidence, the verdict was against the weight of the evidence. More specifically, although the People's witness, Michael S., testified that defendant agreed to start a fire in a school bathroom, that defendant requested others to join him in such activity, and that defendant's motive was to avoid taking a mathematics test later that day, such testimony was unsupported by the other witnesses presented by the People who were present for the same conversations. To the extent Michael testified that he saw defendant set the fire, he previously testified to the contrary during a prior proceeding. Further, in light of defendant's testimony concerning his negative history with Michael, the contradictory evidence as to when defendant made the statement that he was going to start a fire and the People's failure to rebut the evidence presented by defendant that he did not have a mathematics class scheduled that day, the verdict was contrary to the weight of the evidence (see CPL 470.15 [5]; People v Giocastro, 210 AD2d 254 [1994]; People v Padgett, 191 AD2d 592 [1993]). Accordingly, we reverse the judgment and dismiss the accusatory instrument. [*2]

Rudolph, P.J., Angiolillo and Tanenbaum, JJ., concur.
Decision Date: May 23, 2006