THERE WAS NO EVIDENCE DEFENDANT WAS AWARE OF THE SPONTANEOUS USE OF A KNIFE BY THE PERPETRATOR IN THIS MURDER CASE; THE EVIDENCE DEFENDANT SHARED THE PERPETRATOR’S INTENT, THEREFORE, WAS INSUFFICIENT (THIRD DEPT).

The Third Department, reversing defendant’s conviction for murder under an accomplice theory, determined the evidence defendant shared the intent of Mack, who stabbed the victim, was insufficient:

To hold a person responsible for the criminal conduct of another, the People must demonstrate that “when, acting with the mental culpability required for the commission thereof, he [or she] solicit[ed], request[ed], command[ed], importune[d], or intentionally aid[ed] [the principal] to engage in such conduct” (Penal Law § 20.00 …). In other words, when proceeding “under an acting in concert theory, [the People must prove that] the accomplice and principal [shared] a ‘community of purpose'” … . Moreover, in the case of willful homicide, “a spontaneous and not concerted or planned use of [a] weapon to kill is not, without more, attributable to the companion whose guilt in a joint design to effect death must be established beyond a reasonable doubt” … . In this respect, “[i]t is essential that the intent by [the defendant] to kill be fairly deducible from the proof and that the proof exclude any other purpose” … . …

The sole eyewitness testimony presented by the People established that the altercation between Mack and the victim began as a fist fight until the victim gained the upper hand and knocked Mack to the ground. When Mack got up, he began swinging wildly at the victim, at which point the eyewitness first observed that Mack had a knife in his hand, which had become visible because of the lights from neighboring establishments. The witness testified that he had not seen the knife prior to the victim knocking Mack down and no other evidence presented at trial established that the knife was visible prior to that point. * * *

Even viewing the evidence in the light most favorable to the People … , we find that the jury would have been required to speculate that defendant had become aware of Mack’s spontaneous use of a knife during the altercation … . People v Jenkins, 2022 NY Slip Op 06652. Third Dept 11-23-22

Practice Point: Here the perpetrator, Mack, spontaneously pulled out a knife after he was knocked down in a fist fight with the victim. There was no evidence defendant was aware of Mack’s spontaneous use of a knife, and, therefore, there was no evidence defendant shared Mack’s intent to stab the victim.