| People v Davis |
| 2014 NY Slip Op 03528 [117 AD3d 840] |
| May 14, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Antoine Davis, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Casey Rose Scott of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Deborah E. Wassel of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kohm, J.), rendered May 15, 2012, convicting him of robbery in the second degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the facts, the indictment is dismissed, andthe matter is remitted to the Supreme Court, Queens County, for further proceedingsconsistent with CPL 160.50.
At trial, a jury acquitted the defendant of one count of robbery in the second degree,an element of which is causing physical injury, but convicted him of another count ofrobbery in the second degree, an element of which is aided by another person. Hiscodefendant, Teddy Sancho, was tried with him and was convicted of robbery in the firstdegree and two counts of robbery in the second degree.
"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]). "If a finding in favor of the defendantwould not have been unreasonable, then this Court 'must weigh conflicting testimony,review any rational inferences that may be drawn from the evidence and evaluate thestrength of such conclusions' " (People v Curry, 112 AD3d 843, 844 [2013], quotingPeople v Danielson, 9 NY3d at 348). "Once this Court conducts such an analysis,it must then decide whether the verdict finding the defendant guilty beyond a reasonabledoubt was warranted" (People v Curry, 112 AD3d at 844). This Court essentially"sits as a thirteenth juror and decides which facts were proven at trial" (People vDanielson, 9 NY3d at 348, citing Tibbs v Florida, 457 US 31, 42 [1982];see People v Noble, 86 NY2d 814, 815 [1995]). If it appears that the factfinderfailed to give the evidence the weight it should be accorded, then this Court may set asidethe verdict and dismiss the accusatory instrument or any reversed count (see CPL470.20 [5]; People vRomero, 7 NY3d 633, 643-644 [2006]; People v Mateo, 2 NY3d 383,410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]).
Upon conducting our analysis in accordance with the foregoing principles, we find[*2]that the verdict convicting the defendant of robberyin the second degree under a theory of accessorial liability was against the weight of theevidence. To sustain a conviction of robbery in the second degree under Penal Law§ 160.10 (1), the People must show that a defendant forcibly stole propertyand was "aided by another person actually present." To establish a defendant's guilt ofthis crime on the theory of accessorial liability, " 'the evidence, when viewed in alight most favorable to the prosecution, must prove beyond a reasonable doubt that theaccused acted with the mental culpability necessary to commit the crime charged andthat, in furtherance thereof, he solicited, requested, commanded, importuned orintentionally 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 People v Marchena, 116AD3d 713, 714 [2d Dept 2014]).
Here, the defendant was charged with robbery in the second degree stemming fromallegedly aiding Sancho in robbing the complainant of a cell phone. At trial, the Peoplepresented evidence that the complainant, a driver for a "dollar van" rental company, hada confrontation with Sancho, another "dollar van" driver, about money the complainantallegedly owed to their employer. Sancho shoved the complainant, took $100 from thecomplainant's pocket, and ordered the complainant to get into his own van. Sancho thengot into the passenger seat and displayed a pistol, and the complainant told Sancho thathe had more money at home and that he would give it to him. The complainant thendrove the van to his home, and when they arrived, the complainant ran inside and lockedthe door behind him, leaving Sancho outside. Sancho eventually left in the complainant'svan.
Later that night, the complainant's van was returned to him by someone named Dave.As the complainant walked towards the van, he observed the defendant standingapproximately 10 feet away, talking on the phone. The defendant approached thecomplainant, they bumped fists, and the complainant heard the defendant say either "he ishere" or "I'm here" into the phone. As the complainant walked closer to the van, he sawanother person and Sancho, who started calling out to him. The complainant walkedaway to call 911, and as he was on the phone, Sancho struck him in the face. Thecomplainant fell to the ground and the defendant punched him, kicked him, and held himon the ground while Sancho hit him. The complainant was eventually able to run away.As the complainant fled, Sancho called out to him and waved his phone at him, whichhad fallen to the ground when he was punched, laughing and asking if he wanted tofinish his phone call with the 911 operator, who was still on the line.
Upon the exercise of our factual review power (see CPL 470.15), wedetermine that an acquittal of the charge of robbery in the second degree would not havebeen unreasonable based upon the evidence presented (see People v Marchena, 116AD3d 713, 714 [2d Dept 2014]; People v Curry, 112 AD3d at 845; People v McMitchell, 110AD3d 923, 924 [2013]; People v Boley, 106 AD3d 753, 753 [2013]). Moreover, wedetermine that the evidence presented at trial did not establish, beyond a reasonabledoubt, that the defendant shared Sancho's intent to rob the complainant of his cell phoneor that the defendant solicited, requested, commanded, importuned or intentionally aidedSancho in forcibly taking or retaining the complainant's cell phone. Thus, the judgmentmust be reversed and the indictment dismissed (see generally People v Romero, 7 NY3d 633 [2006]).
In light of our determination, we need not address the defendant's remainingcontention. Mastro, J.P., Leventhal, Chambers and Austin, JJ., concur.