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