| People v Lopez |
| 2016 NY Slip Op 02112 [137 AD3d 1166] |
| March 23, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Luis Lopez, Appellant. |
Samuel K. F. Jones, Brooklyn, NY, for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and LoriGlachman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Dwyer, J.), rendered July 1, 2011, as amended July 6, 2011, and July 19, 2011,convicting him of conspiracy in the second degree, attempted murder in the seconddegree, assault in the first degree, assault in the second degree, criminal possession of aweapon in the second degree (two counts), criminal possession of a controlled substancein the second degree, and criminal possession of a controlled substance in the thirddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment, as amended, is modified, on the facts, by vacating theconvictions of attempted murder in the second degree, assault in the first degree, andassault in the second degree, vacating the sentences imposed thereon, and dismissingcounts 69, 71, and 74 of the indictment; as so modified, the judgment, as amended, isaffirmed.
At trial, the People presented the testimony of Erik Rodriguez (hereinafter Erik), whotestified under a cooperation agreement that he was the leader of a drug traffickingenterprise in Brooklyn and that the defendant, codefendant Aishan Reyes, and two othercodefendants all worked for him. Erik testified about his role, and the roles of thecodefendants, and the defendant, in Reyes's shooting of a rival drug trafficker who hadrobbed Reyes of one of Erik's cars and a supply of crack cocaine.
On appeal, the defendant challenges only his convictions of attempted murder in thesecond degree, assault in the first degree, and assault in the second degree, contendingthat there was insufficient evidence to corroborate Erik's testimony to convict him ofthese crimes, and that the People failed to prove he had the requisite mental culpability tobe criminally liable for these crimes under an acting-in-concert theory.
The defendant did not preserve for appellate review his contention that the Peoplefailed to present legally sufficient evidence to support the convictions at issue (see People v Hawkins, 11NY3d 484, 492 [2008]; People v Rodriguez, 127 AD3d 997, 997 [2015]), and wedecline to review that contention in the exercise of our interest of justice jurisdiction (see People v Samuels, 130AD3d 757, 758 [2015]; People v Henderson, 120 AD3d 1258, 1259 [2014], lvgranted 25 NY3d 951 [2015]; People v Bridges, 63 AD3d 752, 753 [2009]).Nevertheless, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]), we determine that so much of thejury verdict as found the defendant guilty of attempted murder in the second degree,assault in the first degree, and assault in the second degree was against the weight of theevidence.
[*2] To establish accessorial liability,the People must prove beyond a reasonable doubt that the accused acted with the mentalculpability necessary to commit the crimes charged and that, in furtherance thereof, hesolicited, requested, commanded, importuned, or intentionally aided his allegedaccomplices to commit such crimes (see Penal Law § 20.00; People v Chardon, 83 AD3d954 [2011]; People vFarrell, 61 AD3d 696 [2009]). Testimony of an accomplice must be supportedby corroborative evidence tending to connect the defendant with the commission of theoffenses charged (see CPL 60.22 [1]; see People v Romero, 7 NY3d 633 [2006]). Thedefendant's "mere presence at the scene of a crime, even with knowledge that the crime istaking place, or mere association with a perpetrator of a crime, is not enough foraccessorial liability" (Matter ofTatiana N., 73 AD3d 186, 190-191 [2010]).
Here, there was testimony and corroborating evidence that the defendant knew of thetheft of the car by the rival drug trafficker and that Reyes, at Erik's behest, was going tofind the rival and get the stolen car back. There also was evidence that three carloads ofpeople, including Erik and the defendant, traveled to an area near the rival's home. Thereis no testimony or other evidence that the defendant knew that Reyes had a gun or thatthere was a plan to shoot the rival until Erik began giving instructions toReyes—who was in another car—over the phone while the defendant sat inthe backseat of the vehicle in which Erik was traveling. There is no evidence that thedefendant undertook any act in furtherance of the plan discussed by Erik. Thus, theevidence presented at trial did not establish, beyond a reasonable doubt, that thedefendant shared the intent to kill or assault the victim, or that he solicited, requested,commanded, importuned, or intentionally aided his alleged accomplices to commit suchcrimes (see People vMarchena, 116 AD3d 713, 714 [2014]; People v Chardon, 83 AD3d at956; People v Farrell, 61 AD3d at 697).
Accordingly, we vacate the convictions of attempted murder in the second degree,assault in the first degree, and assault in the second degree, and the sentences imposedthereon, and dismiss counts 69, 71, and 74 of the indictment. Rivera, J.P., Leventhal,Miller and Duffy, JJ., concur.