| People v Farrell |
| 2009 NY Slip Op 02803 [61 AD3d 696] |
| April 7, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Aaron Farrell, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.),rendered September 6, 2006, convicting him of attempted robbery in the second degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and the facts, and as a matter of discretionin the interest of justice, the indictment is dismissed, and the matter is remitted to the SupremeCourt, Kings County, for the purpose of entering an order in its discretion pursuant to CPL160.50.
The defendant did not preserve for appellate review his contention that the People failed topresent legally sufficient evidence that he shared the intent of his alleged accomplices to commitrobbery in the second degree (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People vFinger, 95 NY2d 894 [2000]; People v Gray, 86 NY2d 10, 19-21 [1995]).Nevertheless, reviewing that contention in the exercise of our interest of justice jurisdiction(see CPL 470.15 [3] [c]), and viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that the evidencefailed to support the defendant's conviction of attempted robbery in the second degree beyond areasonable doubt. To sustain a conviction based upon accessorial liability, "the evidence, whenviewed in a light most favorable to the prosecution, must prove beyond a reasonable doubt thatthe accused acted with the mental culpability necessary to commit the crime charged and that, infurtherance thereof, he solicited, requested, [*2]commanded,importuned or intentionally aided the principal to commit such crime" (Matter of JohnG., 118 AD2d 646 [1986]; see Penal Law § 20.00; Matter of BiancaW., 267 AD2d 463, 464 [1999]; Matter of Peter J., 184 AD2d 511, 512 [1992]). Inthis case, there was legally insufficient proof from which the jury could have determined beyonda reasonable doubt that the defendant shared the intent to commit robbery, or that he solicited,requested, commanded, importuned, or intentionally aided the principals in committing theoffense of attempted robbery in the second degree (see Matter of Tyrone P., 42 AD3d 170, 175-176 [2007]; Matter of Derrick McM., 23 AD3d474, 475 [2005]; Matter of LamarMcL., 19 AD3d 234, 234-235 [2005]; Matter of Bianca W., 267 AD2d 463, 464[1999]; Matter of Peter J., 184 AD2d 511, 512 [1992]). Furthermore, even if theevidence presented at trial had been legally sufficient to establish accessorial liability forattempted robbery in the second degree, we would nevertheless agree with the defendant, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), that the verdict of guilt in this case was against theweight of the evidence (cf. People vRomero, 7 NY3d 633 [2006]).
In view of the foregoing, we do not reach the defendant's remaining contentions. Mastro,J.P., Rivera, Dickerson and Leventhal, JJ., concur.