Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Matthew Sciarrino, J.), rendered June 15, 2006. The judgment convicted defendant, after a nonjury trial, of patronizing a prostitute in the fourth degree.

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

Defendant was convicted of the crime of patronizing a prostitute in the fourth degree (Penal Law § 230.03). The evidence of the crime principally consisted of the testimony of an undercover female police officer, who averred that on a cold autumn evening, defendant pulled his automobile over to the curb where she was pacing to and from, and engaged her in conversation. He allegedly asked her to perform a sex act in exchange for $10. According to the officer, she told defendant to wait a moment, and she walked away to alert her backup team that a proposition had been made. Defendant did not remain at the curb, and as he drove from the location, he was apprehended by police personnel assigned as the undercover officer's backup team.

At trial, no tape recordings of the purported verbal exchange with defendant were produced, nor was there any corroborating testimony to the conversation from the backup personnel, although the undercover officer was equipped with a transmitter
("Kel device"). The undercover officer testified that she had a microphone under her clothing but it was not operating properly.

Another officer, who was a member of the backup team, testified that the Kel microphone was a device used to either record or to hear exactly what is taking place, and that a police vehicle" on another street was listening (cf. People v Rivera, 59 AD2d 874, 875 [1977]). The backup officer added that she could not hear what was said but could see defendant, and his [*2]conversation with the undercover officer lasted not more than about a minute or so. The backup officer did not observe an exchange of money.

Defendant testified and denied the allegation. He supplemented his income by using his Lincoln Town Car to drop off friends, coworkers or friends of theirs. He asked the undercover officer if she was looking for a cab, and she said, "No." She told him that if he gave her $10, they could "hang out." Defendant said, "No, that's all right," and proceeded to leave. Thereafter, two vehicles "came from somewhere" and stopped him, and he was arrested.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to satisfy the People's burden of establishing guilt beyond a reasonable doubt. Nonetheless, upon the exercise of our factual review power (see CPL 470.15; People v Zephyrin, 52 AD3d 543 [2008]), we find the conviction in this case to be against the weight of the evidence. We have weighed "the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v Zephyrin, at 543 [internal quotations and citation omitted]) and "determine firstly, that an acquittal . . . would not have been unreasonable based upon the evidence presented, and secondly, that the trial court failed to accord the evidence the weight it should have been accorded" (id.; see People v Romero, 7 NY3d 633 [2006]).

Under the circumstances, therefore, the judgment of conviction is reversed and the accusatory instrument is dismissed.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: January 12, 2009