| People v Fonerin |
| 2018 NY Slip Op 01480 [159 AD3d 717] |
| March 7, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Lorenzo Fonerin, Appellant. |
Randall D. Unger, Bayside, NY, for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Seth M. Lieberman, andJulian Joiris of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DeborahDowling, J.), rendered June 12, 2015, convicting him of assault in the first degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the facts, the indictment is dismissed, and thematter is remitted to the Supreme Court, Kings County, for further proceedings consistent withCPL 160.50.
On the evening of September 23, 2012, the codefendant, Suliman Ahmed, set fire to asleeping homeless man while the defendant recorded the incident on his cell phone. The eventsoccurred outside a deli where the codefendant was the manager and the defendant had beenemployed for approximately two weeks. The victim, who was mentally ill, often slept outside thedeli. The defendant's cell phone video shows that, just as the codefendant began to douse thevictim with lighter fluid, the defendant uttered, "Do that shit, man." The cell phone footage, aswell as nearby surveillance video footage, shows that the defendant continued to hold his cellphone to film the victim staggering around, engulfed in flames, as the codefendant and othersattempted to extinguish the flames on the victim. After approximately one minute of recording,the defendant eventually retrieved water from inside the deli and extinguished the fire. The juryfound the defendant guilty of assault in the first degree (Penal Law § 120.10 [3]) ona theory of accessorial liability (see Penal Law § 20.00). The defendantappeals from the judgment of conviction, arguing, inter alia, that the jury's verdict was against theweight of the evidence.
Upon the defendant's request, this Court must conduct a weight of the evidence review(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342, 348 [2007]). In conducting our weight of the evidence review,we have a responsibility to affirmatively review the record, independently assess all of the proof,substitute our own credibility determinations for those made by the jury in an appropriate case,determine whether the jury's determination was factually correct, and acquit a defendant if we arenot convinced that the jury was justified in finding that guilt was proven beyond a reasonabledoubt (see People v Delamota, 18NY3d 107, 116-117 [2011]). "[W]eight of the evidence review requires a court first todetermine whether an acquittal would not have been unreasonable. [*2]If so, the court must weigh conflicting testimony, review anyrational inferences that may be drawn from the evidence and evaluate the strength of suchconclusions" (People v Danielson, 9 NY3d at 348). "Based on the weight of the credibleevidence, the court then decides whether the jury was justified in finding the defendant guiltybeyond a reasonable doubt" (id.; see People v Bleakley, 69 NY2d 490 [1987])."When an appellate court performs weight of the evidence review, it sits, in effect as a 'thirteenthjuror' " (People v Mateo, 2 NY3d 383, 410 [2004] [internal quotation marksomitted]), but this Court also gives great deference to the jury's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see id. at 410; People vBleakley, 69 NY2d at 495).
To convict the defendant of assault in the first degree under Penal Law § 120.10(3), the People were required to prove beyond a reasonable doubt that the defendant, acting inconcert with another person, caused serious physical injury to the victim, that the defendant didso by recklessly engaging in conduct that created a grave risk of death to the victim, and that thedefendant engaged in such conduct under circumstances evincing a depraved indifference tohuman life. For the defendant to be held criminally liable for the conduct of the codefendant, thePeople had to prove beyond a reasonable doubt that the defendant solicited, requested,commanded, importuned, or intentionally aided the codefendant to engage in that conduct, andthat the defendant did so with the state of mind required for the commission of the offense(see Penal Law § 20.00). A defendant's mere presence at the scene of acrime, even with knowledge that the crime is taking place, or mere association with theperpetrator of a crime, is not enough for accessorial liability (see People v Lopez, 137 AD3d 1166, 1167 [2016]; Matter of Tatiana N., 73 AD3d186, 190-191 [2010]).
It is undisputed that the defendant did not assist the codefendant in dousing the victim withlighter fluid or setting fire to the victim, and did not supply any of the materials to thecodefendant to commit the criminal act. The defendant's actions, in uttering, "Do that shit, man,"as the codefendant doused the victim with lighter fluid, and in filming this incident forapproximately one minute before rendering any aid to this particularly vulnerable and helplessvictim, were deplorable. However, his actions did not support the jury's finding beyond areasonable doubt that he solicited, requested, commanded, importuned, or intentionally aided thecodefendant to assault the victim, and that he did so sharing the codefendant's state of mind.
Upon the exercise of our factual review power (see CPL 470.15), we determine thatan acquittal of assault in the first degree would not have been unreasonable. Moreover, wedetermine that the jury was not justified in finding the defendant guilty beyond a reasonabledoubt. Thus, the judgment must be reversed and the indictment dismissed (see generally People v Romero, 7NY3d 633 [2006]).
In light of our determination, we need not address the defendant's remaining contentions.Leventhal, Austin and Barros, JJ., concur.
Rivera, J.P., dissents, and votes to affirm the judgment, with the following memorandum, inwhich Christopher, J., concurs: I respectfully dissent and vote to affirm the judgment ofconviction.
On September 23, 2012, the defendant, acting with a codefendant, approached the victim, ahomeless man, who was asleep outside a bodega where the defendant and the codefendantworked. Utilizing his cell phone, the defendant filmed the codefendant as the codefendant pouredlighter fluid onto the victim's back. The codefendant then set fire to the victim. The defendant isheard on the cell phone video stating to the codefendant, "Do that shit, man." The brutal incidentwas also captured on surveillance footage. The defendant was later arrested and ultimatelyconvicted, upon a jury verdict, of assault in the first degree.
[*3] Contrary to the determination of my colleagues in themajority, in conducting our independent review of the weight of the evidence, I am satisfied thatthe verdict of guilt is not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Among other things,the defendant argues on appeal, and the majority agrees, that the verdict is against the weight ofthe evidence because the People did not prove beyond a reasonable doubt that he shared thecodefendant's intent to commit depraved assault, or that he solicited, requested, commanded,importuned, or intentionally aided the codefendant in committing the crime of assault in the firstdegree.
A person is guilty of assault in the first degree when, "[u]nder circumstances evincing adepraved indifference to human life, he or [she] recklessly engages in conduct which creates agrave risk of death to another person, and thereby causes serious physical injury to anotherperson" (Penal Law § 120.10 [3]). To establish accessorial liability, the People mustprove beyond a reasonable doubt that the accused acted with the mental culpability necessary tocommit the crime charged and that, in furtherance thereof, he or she solicited, requested,commanded, importuned, or intentionally aided the principal to commit such crime (seePenal Law § 20.00; People v Cabey, 85 NY2d 417, 421 [1995];People v Allah, 71 NY2d 830, 832 [1988]; People v Carpenter, 138 AD3d 1130, 1131 [2016]).
Here, the jury was justified in finding the defendant guilty beyond a reasonable doubt.According great deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]), including thedefendant, who testified on his own behalf, a jury could logically conclude that the Peoplesustained their burden of proof. The evidence presented showed that the defendant importunedthe codefendant by expressly stating, "Do that shit, man." These commanding words were clearlyheard on the cell phone video as the codefendant is observed squeezing a visible bottle of lighterfluid. The evidence also established that the victim was thereafter set on fire, with flamesengulfing his back and causing severe burns from his buttocks to his shoulders.
Upon viewing the surveillance video, the cell phone video played to the jury, and all of theevidence proffered, I am certain, as found by the jury, that the defendant importuned thecodefendant to commit this reprehensible act and fully shared the codefendant's intent. He wasnot merely a reporter of the incident; he was an accessory to the crime. I further find all of hisremaining contentions to be without merit.
Accordingly, for these reasons, I conclude that the judgment should be affirmed.