People v. Cheatham , 153 A.D.2d 566 ( 1989 )

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Joy, J.), rendered September 1, 1987, convicting him of sexual abuse in the first degree (two counts), criminal possession of a weapon in the fourth degree, and endangering the welfare of a minor, after a nonjury trial, and imposing sentence.

Ordered that the judgment is reversed, on the facts, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

The defendant contends that the People failed to prove his guilt beyond a reasonable doubt because of the inconsistencies in the People’s case and the lack of any evidence other than the infant victim’s testimony to connect the defendant to the crime. While we are cognizant that the resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the trier of fact (see, People v Gaimari, 176 NY 84, 94), whose determination is to be accorded great deference on appeal (see, People v Garafolo, 44 AD2d 86, 88), in this case the finding of guilt is clearly unsupported by the evidence adduced at the trial.

On March 21, 1985, a 10-year-old girl was sexually abused in a faculty bathroom on the second floor of the Queens elementary school she attended. She did not tell anyone of the incident until nearly a month later when she reported it to a friend of hers. The police were notified on May 2, 1985, and about two weeks later the defendant was arrested. The defendant was an employee of the New York City Department of Parks and Recreation (hereinafter Parks Department) and worked in the park adjacent to the school.

At the trial, the victim testified that her assailant had been dressed in an all-green work uniform, very much like that worn by the school’s janitors, and that there were no patches, badges or other markings on the uniform. However, on the date of his arrest, the defendant was dressed in a Parks Department uniform consisting of a blue shirt with "a round Department of Parks and Recreation patch on the arm”. Indeed, a Parks Department supervisor testified that the color of the required employee uniforms had been changed from green to blue several years prior to the date of the alleged incident and that all uniform shirts had the New York City Department of Parks and Recreation patch on them. He also recalled the defendant as having always worn the blue uniform shirt during the time period in question. Moreover, no evidence was adduced to show that the defendant had ever owned, possessed, or even worn, a green uniform shirt.

The victim also testified that her assailant had forced her down one of the three stairways from the third floor of the school to the second floor, whereupon they walked directly towards the faculty bathroom. Once they reached the bathroom, the assailant immediately selected the correct key from a key ring containing a number of keys and unlocked the bathroom door. Despite the fact that the victim’s testimony established that her assailant had a certain familiarity with the school building, there was no evidence indicating that the defendant had ever been inside the building. The defendant stated that he had never been inside the school, and both the victim and the school principal partially confirmed this by stating that they had never seen the defendant inside the building. In fact, the defendant had only started working at the park adjacent to the school in January 1985.

Furthermore, the Parks Department did not possess keys for the school building, and the defendant was not issued any keys for the school. In addition, the defendant had a key ring with some 14 keys on it when he was arrested. The arresting officer tried each key in the lock of the faculty bathroom door, but none of them fit. Thus, the inference that the defendant had somehow obtained a key from an unknown janitor with whom he had once talked is mere speculation, unsupported by any factual substance.

In contrast to the lack of any evidence connecting the defendant to the school building, the testimony at trial indicated that the victim uniformly told everyone that she thought her assailant was a janitor. Indeed, the school principal testified that at about the same time as this incident one of the school’s custodial helpers was discharged because of complaints by parents that he was making approaches to the girls. However, other than speaking to the chief custodian, the police made no investigation of school personnel after the victim filed her report.

Additionally, the Parks Department payroll records reflect that the defendant worked at the park from 8:00 a.m. to 5:00 p.m. nearly every Monday through Friday beginning in January 1985 until the date he was arrested. Thus, the defendant would be working in the park at the start of the school day, when the students lined up to go into the school, at lunchtime, and at the end of the school day. Yet, although the victim was in the park every school day, and although she lived across the street from the park, she claimed that she had never seen the person who had molested her during the entire two-month period between the incident and the day of the defendant’s arrest. Indeed, she stated that she had never seen the man prior to the incident.

Finally, it should be noted that while the victim developed a vaginal infection towards the latter part of March, not only was there no medical evidence establishing a causal link between any alleged abuse and the infection, there was no medical evidence showing any sexual abuse. Moreover, the victim’s mother’s unsubstantiated testimony that she had perceived changes in the victim’s behavior after March 21st was likewise inconclusive. Kunzeman, J. P., Rubin and Balletta, JJ., concur.