| People v Zuhlke |
| 2009 NY Slip Op 08265 [67 AD3d 1341] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Donovan L.Zuhlke, Appellant. |
—[*1]
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered April 5, 2006. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the second degree and criminal possession of a weapon in the thirddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, following a jury trial, of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [former (2)]) andcriminal possession of a weapon in the third degree (§ 265.02 [former (4)]), defendantcontends that the evidence is legally insufficient to support the conviction because the Peoplefailed to establish that he acted with the requisite intent for accomplice liability. We reject thatcontention (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Whether anaccessory shares the intent of a principal actor may be established by circumstantial evidence(see generally People v Ozarowski, 38 NY2d 481, 489 [1976]; People v Johnson,101 AD2d 684 [1984]).
Here, it is undisputed that defendant knew that the other individuals in the vehicle in whichhe was a passenger planned to use the gun in an unlawful manner. The People presentedevidence, including defendant's sworn statement, from which the jury could reasonably infer thatdefendant was a participant in the plan, from its inception, to acquire the gun and to locate anindividual who would act as the gunman. Contrary to the contention of defendant, evidence ofhis flight from the scene of the shooting was admissible as circumstantial evidence of hisconsciousness of guilt (see People vLendore, 36 AD3d 940 [2007], lv denied 8 NY3d 947 [2007]).
Finally, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495). Present—Scudder, P.J., Smith, Carni,Pine and Gorski, JJ.