People v. Rossey , 635 N.Y.S.2d 970 ( 1995 )

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Demakos, J.), rendered April 25, 1994, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

The defendant was tried and convicted, along with the codefendant, Michael Ocasio, of intentional murder and criminal possession of a weapon in the second and third degrees in connection with the shooting death of Joe Guerra on a Queens sidewalk (see, People v Ocasio, 222 AD2d 706 [decided herewith]). The defendant argues that the evidence adduced was legally insufficient to support the jury’s verdict that he acted in concert with Ocasio to cause Guerra’s death. We agree.

It is uncontroverted that the defendant neither possessed the murder weapon nor fired the fatal shots. Therefore, in order to hold the defendant criminally responsible for the murder "the People were obligated to prove beyond a reasonable doubt that [he] acted with the mental culpability necessary to commit the crime and, in furtherance thereof, he solicited, requested, commanded, importuned or intentionally aided [Ocasio] in the commission of the crime [Penal Law § 20.00]” (People v Torres, 153 AD2d 911; see also, People v LaBelle, 18 NY2d 405; People v Bennett, 160 AD2d 949, 951). The People failed to meet this burden since they did not demonstrate that the defendant was acting in concert with Ocasio, who actually shot the deceased.

The evidence adduced against the defendant established that he drove Ocasio, the shooter, and another individual to the scene of the crime. The defendant then called Guerra, the victim, over to the car. When Guerra would not come to the car the defendant brought the car closer to him, and then got out and had what might be characterized as an animated pr heated conversation with Guerra. At the conclusion of the conversation, the defendant turned his back on Guerra, thereby facing Ocasio in the car, and "made a gesture like he was tired of everything with his hands”, that is, "both arms went up and back down”. As the defendant continued to walk toward the car, Ocasio got out of the car, fired five shots at Guerra, got back into the car, and left the scene, with the defendant at the steering wheel of the car. When one of the witnesses approached the fallen victim, Guerra mentioned the defendant’s name and then said that Ocasio shot him.

This evidence, at best, establishes that the defendant had a dispute with Guerra, which was not resolved by their conversation, and that the defendant’s companion, Ocasio, pulled out a handgun and shot Guerra. Contrary to the reasoning of the dissent, the evidence cannot be construed as proving beyond a reasonable doubt, let alone to a moral certainty, that the defendant shared Ocasio’s intent to kill Guerra. Indeed, there is nothing to indicate that Ocasio was aware of or shared in the defendant’s dispute with Guerra or that the defendant was aware that Ocasio had a gun, and there is nothing to indicate that the defendant knew of Ocasio’s intent to shoot Guerra or otherwise prearranged the crime (cf., People v Cabey, 85 NY2d 417). Although it is possible that the defendant was aware that Ocasio intended to kill Guerra if the defendant and Guerra could not resolve their differences, it is equally possible that the defendant simply had an argument with Guerra and that his actions while walking away from Guerra stemmed from frustration as opposed to any pre-arranged signal to Ocasio to shoot Guerra. In other words, the defendant’s relatively innocuous actions, following his argument with Guerra, do not support the conclusion that he "knowingly and intentionally solicited the assistance of [Ocasio] in resolving his dispute with the victim by shooting him” (People v Middleton, 192 AD2d 740, 741). Accordingly, the evidence does not exclude the "fair inference” that the defendant did not share in Ocasio’s intention to kill Guerra (see, People v LaBelle, supra; People v Akptotanor, 158 AD2d 694, affd 76 NY2d 1000).

Nor does the fact that the defendant arrived and left with Ocasio otherwise establish the defendant’s "community of purpose” with Ocasio. The defendant’s mere presence at the scene of the crime is insufficient for a finding of criminal liability (see, People v Sanchez, 61 NY2d 1022). In addition, although the defendant drove Ocasio to the scene, we note that the shooting occurred on a public street and thus it cannot be said that the defendant was in any way instrumental in luring Guerra into an isolated area so that Ocasio could carry out the murder (cf., People v Cabey, supra, at 421). That the defendant drove Ocasio away from the scene of the crime after the shooting is of limited probative value especially in view of the fact that the vehicle belonged to the defendant’s girlfriend and the defendant was the one who had been driving the car. A defendant’s criminal intent is not established by his mere failure to disassociate himself from the shooter once he is aware that a fatal shooting has occurred (see, People v LaBelle, supra; People v Bennett, 160 AD2d 949, supra).

Thus, the evidence, when viewed in the light most favorable to the People, fails to establish beyond a reasonable doubt that the defendant acted in concert with Ocasio to intentionally cause Guerra’s death, and the defendant’s conviction must be reversed and the indictment dismissed insofar as it is asserted against him.

In view of our conclusion herein we find it unnecessary to reach the defendant’s remaining contentions. Bracken, J. P., Santucci and Joy, JJ., concur.