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LEGALLY INSUFFICIENT EVIDENCE THAT DEFENDANT WAS THE SHOOTER IN THIS HOME INVASION CASE, FIRST DEGREE MURDER CONVICTION REDUCED TO SECOND DEGREE MURDER (FOURTH DEPT).

The Fourth Department, reducing defendant’s conviction from first degree to second degree murder, over a two-justice dissent, determined there was legally insufficient evidence that the defendant shot the victim in this home invasion case:

To support a conviction of murder in the first degree under Penal Law § 125.27 (1) (a) (vii), the People were required to establish beyond a reasonable doubt that defendant intentionally caused the victim’s death during the commission of a crime enumerated in the statute, such as a robbery or burglary in the first degree. A conviction under subparagraph (vii) cannot be based on accomplice liability under section 20.00, “unless the defendant’s criminal liability . . . is based upon the defendant having commanded another person to cause the death of the victim or intended victim” … . Here, the jury was never presented with the command theory of liability, but was instead expressly instructed in response to a jury note that, to convict defendant of murder in the first degree, it would have to determine that defendant “pulled the trigger himself.”

Viewing the evidence in the light most favorable to the People, we conclude that no rational trier of fact could have found beyond a reasonable doubt that defendant shot the victim… . Here, the evidence established that defendant’s girlfriend was also inside the victim’s house with defendant at the time when the victim is believed to have been shot, but the People presented no evidence whatsoever with respect to the series of events inside the home or with respect to who ultimately “pulled the trigger” against the victim. People v Henry, 2018 NY Slip Op 01833, Fourth Dept 3-16-18

CRIMINAL LAW (LEGALLY INSUFFICIENT EVIDENCE THAT DEFENDANT WAS THE SHOOTER IN THIS HOME INVASION CASE, FIRST DEGREE MURDER CONVICTION REDUCED TO SECOND DEGREE MURDER (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, LEGALLY INSUFFICIENT EVIDENCE THAT DEFENDANT WAS THE SHOOTER IN THIS HOME INVASION CASE, FIRST DEGREE MURDER CONVICTION REDUCED TO SECOND DEGREE MURDER (FOURTH DEPT))

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