| People v Evans |
| 2013 NY Slip Op 01950 [104 AD3d 1286] |
| March 22, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vCrushawn Evans, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered September 18, 2009. The judgment convicted defendant, upon a nonjuryverdict, of assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe facts, the indictment is dismissed and the matter is remitted to Supreme Court,Onondaga County, for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjuryverdict of assault in the second degree (Penal Law § 120.05 [4]). The convictionarises from the accidental misfire of a sawed-off shotgun in Lincoln Park in Syracuse.Defendant failed to preserve for our review his contention that the People failed toestablish that he had the requisite reckless mental state and thus that the evidence islegally insufficient to support the conviction inasmuch as he failed to move for a trialorder of dismissal specifically directed at the alleged insufficiency (see People vGray, 86 NY2d 10, 19 [1995]).
Defendant further challenges the weight of the evidence supporting the verdict,however, and we thus "necessarily review the evidence adduced as to each of theelements of the crime[ ] in the context of our review of defendant's challenge regardingthe weight of the evidence" (People v Caston, 60 AD3d 1147, 1149 [2009]). "[B]asedon all the credible evidence[, we conclude that] a different finding would not have beenunreasonable," and we therefore conduct an independent review of the trial evidence(People v Bleakley, 69 NY2d 490, 495 [1987]). "The Court of Appeals hasrecently reiterated that, in reviewing the weight of the evidence, we must 'affirmativelyreview the record; independently assess all of the proof; substitute [our] own credibilitydeterminations for those made by the [factfinder] in an appropriate case; determinewhether the verdict was factually correct; and acquit a defendant if [we are] notconvinced that the [factfinder] was justified in finding that guilt was proven beyond areasonable doubt' " (People vOberlander, 94 AD3d 1459, 1459 [2012], quoting People v Delamota, 18 NY3d107, 116-117 [2011]). Upon our review, we conclude that the People failed toestablish beyond a reasonable doubt that defendant "engage[d] in conduct whichcreate[d] or contribute[d] to a substantial and unjustifiable risk that serious physicalinjury to another person by means of a deadly weapon . . . [would] occur"(CJI2d[NY] [*2]Penal Law § 120.05 [4]; seegenerally Delamota, 18 NY3d at 116-117). The People's theory of the case was thatdefendant's recklessness was demonstrated by conduct including bringing a loadedfirearm, i.e., a sawed-off shotgun, to the park; possessing that firearm in proximity toothers; and holding it pointed at the victim while defendant was imbibing alcohol,disregarding the risk that it might misfire. The People failed to establish beyond areasonable doubt that defendant engaged in any of those activities. Indeed, they failed topresent any evidence establishing that defendant brought the gun to the park; that the gunbelonged to defendant; and that defendant had any knowledge that the gun was loadedwith live ammunition or was aware of—and consciously disregarded—therisk that it might misfire (see generally Penal Law § 15.05 [3]). The onlywitness who observed defendant with the gun testified that as defendant "was picking itup it just went off." None of the three witnesses to the shooting, including the witnesswho observed defendant with the gun, testified that defendant pointed the gun at thevictim at any time. Thus, although there was undisputed evidence of a serious physicalinjury and credible testimony that there was a deadly weapon in the park, we concludethat Supreme Court, as the factfinder, "failed to give the evidence the weight it should beaccorded on the issue whether defendant recklessly caused [serious] physical injury" bymeans of a deadly weapon or a dangerous instrument (People v Groth, 71 AD3d1391, 1392 [2010]). Consequently, we reverse the judgment of conviction anddismiss the indictment. In light of our determination, we need not consider defendant'sremaining contentions. Present—Smith, J.P., Fahey, Sconiers, Valentino andWhalen, JJ.