| People v Lazaro |
| 2015 NY Slip Op 01671 [125 AD3d 1008] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Nayely Lazaro, Respondent. |
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, VictorBarall, and Lori Glachman of counsel), for appellant.
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for respondent.
Appeal by the People from so much of an order of the Supreme Court, Kings County(Riviezzo, J.), dated December 10, 2012, as granted that branch of the defendant's motionpursuant to CPL 290.10 and CPL 330.30 (1) which was to set aside a jury verdictconvicting her of attempted assault in the first degree and to dismiss that count of theindictment.
Ordered that the order is affirmed.
The defendant and Irene Bailon were accused of acting in concert in their physicalattacks upon Lucero Felipe and Ruby Arriaga, wherein the defendant cut Felipe beneaththe left eye and Bailon cut Arriaga beneath the left eye. The altercation occurred not longafter a fight between Bailon and Felipe, after which Bailon returned to the scene with thedefendant and others. Felipe testified at trial that during the altercation, the defendant hadused "a box cutter or something like that" to cut her under the left eye, though thedefendant testified that she "[broke] a fingernail on Felipe's face" during the fight whiletrying to push Felipe off her. Arriaga testified that she was cut under the left eye fromBailon's use of a shiny, small razor, and Arriaga's sibling, Leslie Moposita, testified thatBailon struck Arriaga "with something."
The defendant was acquitted by the jury of attempted assault in the first degree andassault in the second degree as to the altercation with Felipe, convicted of assault in thethird degree as to Felipe, and convicted under an acting in concert theory of attemptedassault in the first degree and assault in the second degree in connection with Bailon'saltercation with Arriaga.
Thereafter, the Supreme Court granted that branch of the defendant's motionpursuant to CPL 290.10 and CPL 330.30 which was to set aside the jury verdictconvicting her of attempted assault in the first degree and to dismiss that count of theindictment. The People appeal.
In deciding a motion to dismiss pursuant to CPL 290.10 (1), the trial court mustreview the legal sufficiency of the evidence as defined by CPL 70.10 (1), accepting thecompetent evidence as true, in the light most favorable to the People (see People vSingh, 191 AD2d 731 [1993]). Here, the Supreme Court correctly concluded thatthere was insufficient evidence in the record that the defendant, while acting in concertwith Bailon, knew that Bailon was armed with a deadly [*2]weapon or a dangerous instrument such as a box cutter, orthat she shared Bailon's intent to use such a deadly weapon or dangerous instrument todisfigure Arriaga (see Penal Law § 120.05 [2]; People vMonaco, 14 NY2d 43, 45-46 [1964]; People v Campbell, 79 AD3d 624 [2010]; People vTorres, 153 AD2d 911, 911-912 [1989]; People v Ortiz, 107 AD2d 824, 825[1985]).
Accordingly, the jury's verdict convicting the defendant of attempted assault in thefirst degree as to Arriaga was properly set aside. Dillon, J.P., Leventhal, Chambers andRoman, JJ., concur. [Prior Case History: 38 Misc 3d 697.]