| People v Frazier |
| 2014 NY Slip Op 03857 [117 AD3d 1077] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Johnathan Frazier, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsí of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, HowardB. Goodman, and Amanda Muros-Bishoff of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered April 5, 2010, convicting him of assault in the first degree andcriminal possession of a weapon in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is modified, on the law, (1) by vacating the conviction ofassault in the first degree and the sentence imposed thereon, and dismissing that count ofthe indictment, and (2) by vacating the sentence imposed on the conviction of criminalpossession of a weapon in the second degree; as so modified, the judgment is affirmed,and the matter is remitted to the Supreme Court, Kings County, for resentencing on theconviction of criminal possession of a weapon in the second degree.
We agree with the defendant that the evidence was not legally sufficient to establishhis guilt of assault in the first degree under count four of the indictment, which ispredicated on the theory that the defendant caused serious physical injury to thecomplainant by means of a handgun with intent to cause such injury to a different person(see Penal Law § 120.10 [1]). The evidence was not legallysufficient to establish that the defendant, as opposed to another shooter at the scene, firedthe bullet that caused the complainant's serious physical injury (see People vDlugash, 41 NY2d 725, 730-731 [1977]; People v Petrosino, 299 AD2d 851,851-852 [2002]; People v King, 265 AD2d 678, 680 [1999]; People vAlvarado, 262 AD2d 710, 711 [1999]; People v Darrow, 260 AD2d 928, 929[1999]). The defendant was not charged under an accomplice theory with respect tocount four. Accordingly, the defendant's conviction of assault in the first degree and thesentence imposed thereon must be vacated, and count four of the indictment must bedismissed. Under the circumstances here, we also vacate the sentence imposed on theconviction of criminal possession of a weapon in the second degree and remit the matterto the Supreme Court, Kings County, for resentencing on that conviction (seeCPL 470.20 [3]; People v Cohen, 50 NY2d 908, 910 [1980]; People vStuart, 123 AD2d 46, 54 [1986]). We express no opinion as to the sentence to beimposed.
In light of our determination, we need not reach the defendant's remainingcontentions. Dillon, J.P., Balkin, Miller and Maltese, JJ., concur.