Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Joseph A. Zayas, J.), rendered April 7, 2009. The judgment convicted defendant, after a nonjury trial, of public lewdness.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged with and convicted, after a nonjury trial, of public lewdness (Penal Law § 245.00).

At the outset, we note that defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt was adequately preserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 20-21 [1995]). Viewing the evidence in the light most favorable to the People (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish, beyond a reasonable doubt, defendant's identification as the person who committed the offense and his guilt of public lewdness.

Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their [*2]demeanor and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon a review of the record, we are satisfied that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., and Steinhardt, J., concur.

Weston, J., dissents in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
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PRESENT : PESCE, P.J., WESTON and STEINHARDT, JJ.
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THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

-against-

NO. 2009-1430 Q CR

DECIDED
MATTHEW YOUNG,

Appellant.
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Weston, J., dissents and votes to reverse the judgment of conviction and dismiss the accusatory instrument in the following memorandum.

In my view, this court should, upon exercising its factual review power, find that defendant's conviction was against the weight of the evidence (see CPL 470.15 [5]; People v Romero, 7 NY3d 633 [2006]).

The sole evidence proffered by the People to establish defendant's guilt was the complainant's own uncorroborated identification testimony. Conspicuously absent from the complainant's identification of defendant to police were defendant's earrings, slight beard and mustache, and a distinctive tattoo descending from below his ear to his neck. The complainant also could not recall whether the person she had seen was white or Hispanic and admitted, on cross-examination, that she might be wrong about the distance from which she had first seen defendant. In this case, where defendant's conviction turned on the accuracy of the complainant's identification, the complainant's glaring omissions in her description of defendant rendered her identification testimony unreliable.
In contrast, defendant offered testimony that was consistent and buttressed by the testimony of his brother. Although defendant acknowledged his prior misdemeanor convictions, he denied having committed an act of public lewdness and gave unwavering testimony that he was on his way to a counseling program when he was arrested. He also denied having been in [*4]the park, as the complainant alleged, on a prior occasion - - an assertion supported by his brother, who testified that he was with defendant buying automotive parts that day. Casting further doubt on the complainant's testimony was the testimony of defendant's identification expert, who explained how factors such as distance, event stress, and time of exposure can affect the accuracy of an identification. On this record, it cannot be said that defendant's conviction was supported by the weight of the credible evidence.

Accordingly, I vote to reverse the judgment of conviction and dismiss the accusatory instrument.
Decision Date: December 27, 2011