        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

551
KA 10-00038
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALEXIS OBERLANDER, DEFENDANT-APPELLANT.


DEMARIE & SCHOENBORN, P.C., BUFFALO (JOSEPH DEMARIE OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered January 4, 2010. The judgment convicted
defendant, upon a jury verdict, of offering a false instrument for
filing in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the facts, the indictment is dismissed and the
matter is remitted to Genesee County Court for proceedings pursuant to
CPL 470.45.

     Memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict of one count of offering a false instrument for
filing in the first degree (Penal Law § 175.35). The conviction
arises from defendant’s failure, with the alleged intent to defraud
the Genesee County Department of Social Services (DSS), to report on
an application for food stamp benefits that the father of her youngest
child (hereafter, father) was living in the household. On a prior
appeal, we dismissed 12 of the 13 counts of the indictment for lack of
legally sufficient evidence, and we granted a new trial on the instant
count (People v Oberlander, 60 AD3d 1288).

     Contrary to the contention of defendant, when viewing the
evidence in the light most favorable to the People and affording the
People “all reasonable evidentiary inferences,” we conclude that the
evidence is legally sufficient to support the conviction (People v
Delamota, 18 NY3d 107, 113). We nevertheless agree with defendant
that the verdict is against the weight of the evidence.

     The Court of Appeals has recently reiterated that, in reviewing
the weight of the evidence, we must “affirmatively review the record;
independently assess all of the proof; substitute [our] own
credibility determinations for those made by the jury in an
                                 -2-                           551
                                                         KA 10-00038

appropriate case; determine whether the verdict was factually correct;
and acquit a defendant if [we are] not convinced that the jury was
justified in finding that guilt was proven beyond a reasonable doubt”
(id. at 116-117).

     The theory of the prosecution’s case was that the father lived
with defendant at an address in Batavia when she filed her application
for recertification for food stamp benefits on November 2, 2005 and
that he moved with defendant and her children to another location in
mid-November. It is undisputed that defendant advised DSS officials
of her intent to move. It is also undisputed that defendant advised a
DSS employee in January 2006 that the father would be moving in with
her at the new location. The People presented the testimony of the
boyfriend of defendant’s coworker (hereafter, coworker’s boyfriend),
who had lived with defendant and provided child care for her at the
Batavia residence, as well as the testimony of the coworker herself
(coworker). The coworker’s boyfriend testified that the father lived
with defendant at the Batavia residence and moved with her to the new
residence in November 2005. Defendant, the father, as well as
defendant’s mother, who also cared for the children while defendant
worked two jobs and attended business school, all testified that the
father did not live with defendant until he moved in with her in
January 2006. DSS records reflect that, prior to January 2006 the
father resided at an address in Medina, which the father testified was
his mother’s residence.

     After he was granted immunity from prosecution, the coworker’s
boyfriend testified that he and the coworker “often” smoked crack
cocaine while he was caring for defendant’s children. He denied that
defendant was upset with him when she learned in October 2005 that he
had been using drugs while caring for the children. Defendant,
however, testified that she and the coworker’s boyfriend had a “huge”
argument when she learned of his drug use and that, as a result of
that information, she advised him that he was no longer welcome to
move with her to the new address, as they had planned.

     The coworker testified that, in late December 2005, defendant was
“visibly upset” when she told the coworker and another coworker that
she had lied on her recertification application in early November by
failing to report that the father was living with her. Defendant,
however, testified that she was upset at the time in question while
telling the coworkers about an investigation by Child Protective
Services regarding her oldest child that, as she testified, was later
determined to be unfounded.

     With respect to the conflicting testimony whether the father was
living with defendant prior to January 2006, we find that the
testimony of both the coworker’s boyfriend and the coworker is not
credible and that the testimony of defendant and her mother is
credible. We therefore conclude that the jury did not properly
“ ‘weigh the relative probative force of [the] conflicting testimony
and the relative strength of [the] conflicting inferences that may be
drawn from the testimony’ ” (People v Bleakley, 69 NY2d 490, 495).
                                 -3-                           551
                                                         KA 10-00038

     With respect to the documentary evidence in the form of a rental
agreement for the new residence that contained the signatures of both
defendant and the father, i.e., People’s exhibit 9, we note that the
landlord testified that he could not recall whether he was present
when defendant signed the document, or when and by whom the agreement
containing both signatures was returned to him. Defendant, however,
testified that she signed the agreement on October 14, 2005, the date
reflected on the agreement, in the presence of the landlord, and that
the father was not present. Defendant further testified that, when
she advised the landlord that the father would be moving into the
residence, the landlord informed her that the father was required to
sign the rental agreement. Defendant also testified that, on her
original copy of the rental agreement, i.e., defendant’s exhibit B,
which she provided to DSS with her application for recertification,
the landlord noted his receipt of the security deposit. We have
reviewed the originals of both exhibits and conclude that two original
rental agreements were signed by defendant on October 14, 2005. The
landlord acknowledged the receipt of the security deposit on the
document that defendant retained and the father signed the document
that the landlord retained. The documentary evidence however, when
considered together with the landlord’s testimony and defendant’s
testimony, is inconclusive with respect to when the father signed the
agreement. Therefore, with respect to whether People’s exhibit 9
established that the father lived with defendant before January 2006,
we conclude that the jury “failed to give the evidence the weight it
should be accorded” (id.).

     Because we conclude that the verdict is against the weight of the
evidence, we reverse the judgment and dismiss the indictment (see
Delamota, 18 NY3d at 117). In light of our determination, we need not
address defendant’s remaining contentions.




Entered:   April 20, 2012                       Frances E. Cafarell
                                                Clerk of the Court
