THE EVIDENCE DEFENDANT SHARED THE CO-DEFENDANT’S INTENT TO STAB THE VICTIM WAS LEGALLY INSUFFICIENT (FIRST DEPT).

The First Department, reversing defendant’s assault convictions, determined the evidence defendant shared the co-defendant’s intent to stab the victim was insufficient:

Defendant’s convictions of attempted assault in the first degree and assault in the second degree, charged under an acting in concert theory, were not supported by legally sufficient evidence …  These charges required proof that when the codefendant stabbed the victim, defendant shared the codefendant’s intent to do so; defendant was not convicted of any assault crimes where his liability was based on his intent to commit robbery. During a robbery attempt, the codefendant stabbed the victim from behind several times with a small knife. However, there was no evidence that defendant, who was standing in front of the victim and restraining him, knew that the codefendant had a knife or was planning to use it. “[T]he use of the knife was not open and obvious” … , and defendant released the victim within seconds of the stabbing. Under these circumstances, the record does not support a conclusion beyond a reasonable doubt that defendant was aware of the use of the knife but continued to participate in the assault … . Accordingly, the evidence did not establish defendant’s accessorial liability (see Penal Law § 20.00) for these crimes. People v Grosso, 2021 NY Slip Op 05640, First Dept 10-14-21