| People v Marchena |
| 2014 NY Slip Op 02312 [116 AD3d 713] |
| April 2, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Joseph Marchena, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, EllenC. Abbot, and Eric A. Boden of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Blumenfeld, J.), rendered March 22, 2011, convicting him of attempted robbery in thesecond degree (two counts) and assault in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, on the facts, by vacating the convictions ofattempted robbery in the second degree and the sentences imposed thereon, anddismissing those counts of the indictment; as so modified, the judgment is affirmed.
"Upon [a] defendant's request, the Appellate Division must conduct a weight of theevidence review" and, thus, "a defendant will be given one appellate review of adversefactual findings" (People vDanielson, 9 NY3d 342, 348 [2007]; see People v Curry, 112 AD3d 843, 844 [2013]; seealso Arthur Karger, Powers of the New York Court of Appeals § 21:1 at 744[3d ed rev 2005]). If a finding in favor of the defendant would not have beenunreasonable, then this Court "must weigh conflicting testimony, review any rationalinferences that may be drawn from the evidence and evaluate the strength of suchconclusions" (People v Danielson, 9 NY3d at 348). "Once this Court conductssuch an analysis, it must then decide whether the verdict finding the defendant guiltybeyond a reasonable doubt was warranted" (People v Curry, 112 AD3d at 844)."Essentially," this Court "sits as a thirteenth juror and decides which facts were proven attrial" (People v Danielson, 9 NY3d at 348, citing Tibbs v Florida, 457US 31, 42 [1982]). If it appears that the fact-finder failed to give the evidence the weightit should be accorded, then this Court may set aside the verdict and dismiss theaccusatory instrument or any reversed count (see CPL 470.20 [5]; People v Romero, 7 NY3d633, 643-644 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).
Here, the defendant was convicted of two counts of attempted robbery in the seconddegree under a theory of accessorial liability. "To sustain a conviction based uponaccessorial liability, 'the evidence . . . must prove beyond a reasonabledoubt that the accused acted with the mental culpability necessary to commit the crimecharged and that, in furtherance thereof, he solicited, requested, commanded, importunedor intentionally aided the principal to commit such crime' " (People v Farrell, 61 AD3d696, 697 [2009], quoting Matter of John G., 118 AD2d 646, 646 [1986];see [*2]Penal Law § 20.00; People v Mendez, 34 AD3d697, 698 [2006]; Matter of Bianca W., 267 AD2d 463, 464 [1999];Matter of Peter J., 184 AD2d 511, 512 [1992]).
Upon the exercise of our factual review power (see CPL 470.15), wedetermine, in the first instance, that acquittal of the charges of attempted robbery in thesecond degree would not have been unreasonable based upon the evidence presentedand, moreover, that the jury failed to accord the evidence the weight it should have beenaccorded (see People v Curry, 112 AD3d at 845; People v McMitchell, 110AD3d 923, 924 [2013]; People v Boley, 106 AD3d 753, 753 [2013]). The evidencepresented at trial did not establish, beyond a reasonable doubt, that the defendant sharedthe intent to commit robbery, or that he solicited, requested, commanded, importuned, orintentionally aided the principal in committing the offense of attempted robbery in thesecond degree. Accordingly, the convictions of attempted robbery in the second degreeand the sentences imposed thereon must be vacated, and those counts of the indictmentmust be dismissed (seegenerally People v Romero, 7 NY3d 633 [2006]).
In light of our determination, we need not address the defendant's remainingcontentions. Mastro, J.P., Balkin, Miller and LaSalle, JJ., concur.