Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Ellen M. Coin, J.), rendered October 5, 2006, after a jury trial, convicting her of assault in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Ellen M. Coin, J. and jury), rendered October 5, 2006, reversed, on the law and the facts, and the matter remanded for a new trial.

The court erred in delivering a consciousness-of-guilt charge concerning the defendant's conduct in allegedly refusing to accompany the injured complainant (defendant's mother) and the complainant's hired caregiver to the hospital the day after the alleged incident. While it may be, as the People argue, that the conduct attributed to defendant was unusual or "odd," it hardly constituted the kind of behavior traditionally associated with consciousness of guilt (see e.g. People v Cintron, 95 NY2d 329, 332 [2000][flight]; People v Moses, 63 NY2d 299, 308 [1984] [false statements or alibis]; People v Alexander, 37 NY2d 202, 204 [1975] [abandonment or concealment of evidence]).
On this record, and particularly considering the People's own evidence demonstrating the defendant's reclusive nature and her prior strained relationship with the complainant, no reasonable inference could be drawn from the defendant's inaction that she was manifesting an awareness of guilt. "[T]oo many other explanations for defendant's refusal or disinclination to [join the caregiver in bringing the complainant to the hospital] render it quite speculative as proof from which the fact of a guilty conscience may be deduced" (People v Feldman, 296 NY 127, 137 [1947]; see also People v Bennett, 79 NY2d 464, 470-471 [1992]). Nor can it be said, in the context of this trial, that the erroneous charge was harmless beyond a reasonable doubt.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. In light of our remand for a new trial, we do not address defendant's remaining argument.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 11, 2010