| People v Fagiolo |
| 2017 NY Slip Op 00603 [146 AD3d 724] |
| January 31, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Elizabeth Fagiolo, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Brittany N. Francis ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel),for respondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), renderedJuly 21, 2014, convicting defendant, after a jury trial, of two counts of criminalpossession of a weapon in the second degree, and sentencing her, as a second felonyoffender, to concurrent terms of six years, unanimously reversed, on the law, and theindictment dismissed.
The verdict was not supported by legally sufficient evidence. Even when viewedmost favorably to the People, the evidence was insufficient to establish accessorialliability beyond a reasonable doubt (see generally Penal Law§ 20.00).
With defendant sitting in the passenger seat of the car her boyfriend was driving, thecar followed a van being driven by the shooting victim, a man who had recently fired thefriend of defendant and her boyfriend. The friend, defendant, and her boyfriend usedheroin together. When the van parked, the boyfriend parked the car nearby and thenapproached the van and shot the driver.
In her statement to police, defendant admitted that she knew the boyfriend wascarrying a handgun that day, as he habitually did, and that she had assisted the boyfriendin following the van, by keeping track of it and giving him directions. She also told thepolice that "[s]he assumed [that the boyfriend and the friend] were going to shootsomeone."
Notwithstanding these statements, we find that the evidence was legally insufficientto support an inference, beyond a reasonable doubt, that defendant shared the specificintent of the boyfriend to use the firearm unlawfully against another (compare Matter of Tatiana N.,73 AD3d 186 [1st Dept 2010] [active participation in attack while accomplicewielded weapon]). There was no evidence that defendant participated in the attack, forwhich she was not present, or that anyone ever communicated to her an intent to use thefirearm. Although defendant helped her boyfriend follow the van, the evidence does notestablish that she did so with the intent to assist him in shooting the van's driver. At most,the evidence indicates a mere possibility that this was her intent.
We also note that defendant was acquitted of all charges that she acted in concert tocommit attempted murder and assault-related crimes against the shooting victim.Although "an acquittal is not a preclusive finding of any fact, in the same trial, that couldhave underlain the jury's determination" (People v Abraham, 22 NY3d 140, 147 [2013]), and theacquittals do not obligate us to disregard any of the trial evidence, they underscore theweakness of the inference that defendant shared her boyfriend's intent to shoot thevictim.
We find it unnecessary to address defendant's other arguments.Concur—Friedman, J.P., Renwick, Saxe and Gische, JJ.