| People v Swem |
| 2020 NY Slip Op 02435 [182 AD3d 1050] |
| April 24, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Christopher M. Swem, Appellant. (Appeal No.1.) |
Caitlin M. Connelly, Buffalo, for defendant-appellant.
Kristyna S. Mills, District Attorney, Watertown (Patricia L. Dzuiba of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.),rendered September 7, 2018. The judgment convicted defendant upon a jury verdict ofmurder in the second degree, assault in the first degree, assault in the second degree,criminal possession of a weapon in the third degree and tampering with physicalevidence (two counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted on counts one through six of the indictment.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon a jury verdict of, inter alia, murder in the second degree (Penal Law§ 125.25 [1]) and assault in the second degree (§ 120.05 [1]).In appeal No. 2, defendant appeals from a resentence on one count. We dismiss theappeal from the resentence in appeal No. 2 inasmuch as defendant raises no contentionswith respect thereto (see Peoplev Griffin, 151 AD3d 1824, 1825 [4th Dept 2017], lv denied 30 NY3d949 [2017]).
Contrary to defendant's contentions in appeal No. 1, we conclude that, viewing theevidence in the light most favorable to the People (see People v Contes, 60 NY2d620, 621 [1983]), the evidence is legally sufficient to support the conviction (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]) and, viewing the evidencein light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), the verdict is not against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495).
We nevertheless agree with defendant and conclude that County Court erred indenying defendant's request for a circumstantial evidence instruction. The victim wasstabbed five times at a crowded house party where there were multiple ongoing fights,and the evidence established that the victim was involved in physical altercations with atleast two other partygoers. One of the wounds was almost five inches deep, meaning thatthe blade of the knife must have been at least five inches long. None of the witnesseswho observed defendant fighting with the victim observed anything in defendant's handduring the altercation, and no blood was discovered in the room in which defendant andthe victim engaged in their altercation. All of the evidence at trial required the jury toinfer that defendant was the perpetrator who had the knife and that he used that knife tostab the victim. We thus conclude that a circumstantial evidence instruction waswarranted (see People v Sanchez, 61 NY2d 1022, 1023 [1984]; People v Jones, 105 AD3d1059, 1060 [2d Dept 2013], lv denied 21 NY3d 1016 [2013]; People vLynch, 309 AD2d 878, 878 [2d Dept 2003], lv denied 2 NY3d 742 [2004];cf. People v Lewis, 300 AD2d 827, 828-829 [3d Dept 2002], lv denied 99NY2d 630 [2003]; People v Lawrence, 186 AD2d 1016, 1016-1017 [4th Dept1992], lv denied 81 NY2d 790 [1993]). Contrary to the People's contention, thisIs not "the exceptional case where the failure to give the circumstantial evidence chargewas harmless error" (People v Brian, 84 NY2d 887, 889 [1994]; see People v James, 147 AD3d1211, 1214 [3d Dept 2017], lv denied 29 NY3d 1128 [2017]; cf.Jones, 105 AD3d at 1060). We thus conclude that the judgment must be reversed anda new trial must be granted on counts one through six of the indictment. In light of ourdetermination, we do not address defendant's remaining contentions.Present—Peradotto, J.P., Lindley, NeMoyer, Troutman and DeJoseph,JJ.