Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Alvin Yearwood, J.), rendered April 12, 2005. The judgment convicted defendant, after a nonjury trial, of criminal trespass in the second degree.

Judgment of conviction reversed on the facts, accusatory instrument dismissed, and fine, if paid, remitted.

Defendant was convicted, after a nonjury trial, of criminal trespass in the second degree (Penal Law § 140.15). Upon our factual review power, we find that the verdict was against the weight of the evidence (see CPL 470.15 [5]; People v Romero, __ NY3d __, 2006 NY Slip Op 08640 [Nov. 21, 2006]). The sole evidence proffered by the People to establish defendant's guilt was the complainant's own testimony, which was confusing and unreliable. Complainant, among other things, could not recall if she called the police, if she spoke to the police and what, if anything, she said to the police. Indeed, complainant admitted that she never reported a trespass to police officers at the scene.

In contrast, defendant denied trespassing on complainant's property and testified that he called the police after allegedly being assaulted by a contractor working at complainant's home. [*2]The responding officers, testifying for the defense, confirmed that they responded to defendant's call and that complainant never reported a trespass to them. Casting further doubt on the reliability of complainant's testimony was evidence that she had previously made a false accusation against defendant to the police. On this record, it cannot be said that defendant's conviction was supported by the weight of the credible evidence.

Accordingly, the judgment of conviction is reversed and the accusatory instrument dismissed.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: January 23, 2007