| People v Bailey |
| 2012 NY Slip Op 02703 [94 AD3d 904] |
| April 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Richard Bailey, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnetteTraill, and Suzanne H. Sullivan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Cooperman, J.), rendered July 22, 2009, convicting him of murder in the second degree (twocounts), attempted murder in the second degree, kidnapping in the second degree (two counts),burglary in the first degree (three counts), attempted robbery in the first degree, and criminalpossession of a weapon in the second degree (two counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is modified, on the facts, by vacating the defendant's conviction ofattempted murder in the second degree, vacating the sentence imposed thereon, and dismissingthat count of the indictment; as so modified, the judgment is affirmed.
On January 16, 2008, the defendant and two others entered the home of the complainant,bound and blindfolded him and his friend, and held them captive at gunpoint, demanding moneyand marijuana. When the complainant informed them that he had neither, they ransacked hisapartment. Shortly thereafter, the defendant and his cohorts took the complainant, who was stillbound and blindfolded, to a neighbor's apartment, where they compelled the complainant to trickthe neighbor into letting them inside. When he saw who was there, the neighbor ran into hisbedroom and shut the door. The defendant and his cohorts then fired their guns through thebedroom door, killing the neighbor. As the three men left the neighbor's apartment, one of them,not the defendant, put his gun to the complainant's head and pulled the trigger two or three times.The gun did not fire. As soon as the three were gone, the complainant freed himself, with thehelp of the neighbor's girlfriend, who had been in the bathroom during the shooting, and ran backto his apartment to free the complainant's friend.
The defendant contends, inter alia, that the verdict of guilt on the charge of attempted murderin the second degree was against the weight of the evidence because the evidence did not supporta finding that he shared his cohort's intent to kill the complainant. We agree.
Upon the defendant's request, the Appellate Division must conduct a weight of the [*2]evidence review and, thus, a defendant will be given one appellatereview of adverse factual findings (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342,348 [2007]; People v Romero, 7NY3d 633, 636 [2006]). Weight of the evidence review requires a court first to determinewhether an acquittal would not have been unreasonable (see People v Danielson, 9 NY3dat 348). If so, the court must weigh conflicting testimony, review any rational inferences that maybe drawn from the evidence and evaluate the strength of such conclusions (id.). Based onthe weight of the credible evidence, the court then decides whether the jury was justified infinding the defendant guilty beyond a reasonable doubt (id.).
"[I]n order to hold an accessory liable for the crime committed by the principal actor, thePeople must establish, beyond a reasonable doubt, that the accessory possessed the mentalculpability necessary to commit the crime charged, and that in furtherance thereof, he solicited,requested, commanded, importuned or intentionally aided the principal" (People vBreeden, 220 AD2d 761, 761 [1995] [internal quotation marks and citation omitted];see Penal Law § 20.00; People v Cummings, 131 AD2d 865, 866 [1987];People v Skinner, 190 AD2d 761 [1993]). Thus, "[w]hile the People were not obligatedto prove that the defendant fired the . . . shot[s] in order to obtain a conviction. . . proof that the defendant harbored the specific intent to kill was critical to thePeople's case, for [w]ithout adequate proof of a shared intent with the principal actor, there is nocommunity of purpose and therefore no basis for finding [that the] defendant acted in concertwith the actual shooter" (People v Cummings, 131 AD2d at 866-867 [internal quotationmarks and citation omitted]; see People v White, 178 AD2d 452 [1991]; People vMcLean, 107 AD2d 167, 169 [1985], affd 65 NY2d 758 [1985]).
Here, the defendant had already fled the scene shortly before one of his cohorts held the gunto the complainant's head and pulled the trigger two or three times. Contrary to the People'scontention, the verdict of guilt on the count charging attempted murder in the second degree wasagainst the weight of the evidence since the evidence, properly weighed, does not prove beyond areasonable doubt that the defendant shared his cohort's intention to kill the complainant(see Penal Law §§ 20.00, 110.00, 125.25 [1]; People v Haney, 85 AD3d 816,818 [2011]; cf. People v Padgett, 145 AD2d 443, 444 [1988]). Accordingly, thedefendant's conviction for attempted murder in the second degree and the sentence imposedthereon must be vacated and that count of the indictment must be dismissed.
The defendant's remaining contentions are unpreserved for appellate review (see CPL470.05 [2]), and we decline to reach them in the exercise of our interest of justice jurisdiction.Skelos, J.P., Dickerson, Belen and Miller, JJ., concur.