People v. Payne , 748 N.Y.S.2d 98 ( 2002 )

—Appeal from a judgment of Erie County Court (Pietruszka, J.), entered February 2, 1999, convicting defendant after a nonjury trial of assault in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the facts, the indictment is dismissed and the matter is remitted to Erie County Court for proceedings pursuant to CPL 470.45. All findings of fact made by the Trial Judge that are inconsistent with the Memorandum herein are hereby reversed and new findings are made pursuant to CPLR 5712 (c) as contained in the following Memorandum: Defendant was convicted after a bench trial of assault in the second degree (Penal Law § 120.05 [2]) as an accomplice to a stabbing committed by one of his codefendants. We find that the verdict is against the weight of the evidence and thus we dismiss the indictment against defendant (see generally People v Bleakley, 69 NY2d 490, 495). The weight of the credible evidence and the reasonable inferences that may be drawn therefrom do not support a finding that defendant shared a community of purpose with the codefendant who committed the stabbing (see People v Akptotanor, 158 AD2d 694, 695, affd 76 NY2d 1000; cf. People v Allah, 71 NY2d 830, 831-832; People v Perez, 265 AD2d 347, 348, Iv denied 94 NY2d 827; People v Ortega, 258 AD2d 335, 336, Iv denied 93 NY2d 1045). Present — Pine, J.P., Wisner, Hurlbutt, Scudder and Burns, JJ.