| People v Frederick |
| 2009 NY Slip Op 04155 [62 AD3d 612] |
| May 28, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Trevor Frederick, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sylvia Wertheimer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered September12, 2007, convicting defendant, after a nonjury trial, of murder in the second degree, andsentencing him to a term of 25 years to life, unanimously affirmed.
Where the court dismissed the indictment pursuant to CPL 200.80 as superseded by a newindictment, and subsequently dismissed the superseding indictment as procedurally defective, itproperly reinstated the original indictment (see People v Clarke, 55 AD3d 1447, 1448 [2008], lvdenied 11 NY3d 923 [2009]; see also People v Rosa, 265 AD2d 167 [1999], lvdenied 94 NY2d 884 [2000]; People v Lynch, 162 AD2d 134 [1990], lvdenied 76 NY2d 941 [1990]). The sole reason for dismissing the original indictment wasthat it had been superseded. However, the superseding indictment was a nullity that effectivelyleft the original indictment in place.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). Defendant was properly convicted of felony murder based onevidence warranting a reasonable inference that, in the course of a burglary, defendant eitherpushed the deceased out of a fifth-story window after attacking him, or that the deceased fellwhile fleeing from defendant's attack by attempting to reach a fire escape. Under either scenario,the evidence established that defendant caused the victim's death (see People v DaCosta, 6 NY3d181, 184 [2006]; People v Matos, 83 NY2d 509, 511 [1994]). We reject defendant'sargument that a finding that defendant either pushed or drove the deceased out of the windowwould require speculation. On the contrary, we find that any third explanation for the fatal fallwould be speculative. The evidence, including the surviving victim's credible account ofdefendant's conduct as well as compelling circumstantial evidence, pointed to the inescapableconclusion that the death could only have occurred in one or the other of the two ways posited bythe People.[*2]
We perceive no basis for reducing the sentence, ordirecting that it be served concurrently with defendant's prior sentences.Concur—Gonzalez, P.J., Mazzarelli, Buckley, Renwick and Abdus-Salaam, JJ.