| People v Riley |
| 2017 NY Slip Op 05755 [152 AD3d 719] |
| July 19, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Delroy Riley, Appellant. |
Lynn W. L. Fahey, New York, NY (Yvonne Shivers of counsel), for appellant, and appellantpro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Joseph N. Ferdenzi, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered October 20, 2014, convicting him of murder in the second degree and criminalpossession of a weapon in the second degree (two counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the SupremeCourt, Queens County, for a new trial.
The defendant was convicted of murder in the second degree and two counts of criminalpossession of a weapon in the second degree in connection with the shooting death of a manoutside the residence of Gary Gill in Queens. The People presented the testimony of twoeyewitnesses. One eyewitness testified that shortly before the shooting, he saw a white RangeRover with three people in it pull up outside Gill's residence, and that Gill and another man,whom the eyewitness could not identify, exited the vehicle. This eyewitness testified that Gillwas waving a gun, which Gill then gave to the other man, and that Gill told the other man toshoot. The other man then began shooting. The second eyewitness, however, testified that he wasthe driver of the white Range Rover, that only Gill was a passenger in the vehicle with him, andthat Gill did not have a gun. As they were driving back to Gill's residence, the second eyewitnesssaw the defendant riding in a car driven by another man. The Range Rover and the car pulled upat Gill's driveway almost simultaneously. The defendant exited the car holding a gun. Thedefendant chased after the victim and began shooting.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's' guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). On reviewing the record here, we aresatisfied that the verdicts of guilt were not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
However, reversal of the judgment is required because the Supreme Court failed to [*2]provide the jury with an accomplice-in-fact charge. "A defendantmay not be convicted of any offense upon the testimony of an accomplice unsupported bycorroborative evidence tending to connect the defendant with the commission of such offense"(CPL 60.22 [1]). A witness in a criminal action is an accomplice if he or she "may reasonably beconsidered to have participated in . . . the offense charged or an offense based uponthe same or some of the same facts or conduct which constitute the offense charged" (People v Caban, 5 NY3d 143, 154[2005] [internal quotation marks omitted]; see CPL 60.22 [2] [b]). A witness who is acriminal facilitator is an accomplice for corroboration purposes (see People v Basch, 36NY2d 154, 158 [1975]; People vLumnah, 81 AD3d 1175, 1176 [2011]). The factual issue of whether a particular witnessis an accomplice should be submitted to the jury if different inferences may reasonably be drawnfrom the proof regarding complicity (see People v Basch, 36 NY2d at 157; People v Correa, 88 AD3d 810,811 [2011]).
Here, different inferences may reasonably be drawn (see People v Basch, 36 NY2d at157) as to whether the second eyewitness drove Gill and the shooter to the scene, with theknowledge that one or the other of them intended to use the gun. Under these circumstances, theSupreme Court erred in failing to provide the jury with an accomplice-in-fact charge. The errorwas not harmless, because the evidence of the defendant's guilt was not overwhelming. It ispossible that the jury, properly charged on whether to treat the second eyewitness as anaccomplice, and, if so, how to consider his testimony, could have discounted his version of theevents. In that case, it was for the jury to decide whether the remaining evidence established thedefendant's guilt beyond a reasonable doubt (see People v Sage, 23 NY3d 16, 27-29 [2014]).
The defendant's remaining contentions are either without merit or need not be reached inlight of our determination. Dillon, J.P., Austin, Hinds-Radix and LaSalle, JJ., concur.