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THE SHOOTER, WHO WAS NEVER FOUND OR IDENTIFIED, WAS A PASSENGER IN A CAR DRIVEN BY DEFENDANT WHEN THE SHOOTER SHOT AT AND MISSED A PERSON SITTING IN A PARKED CAR; THE ATTEMPTED MURDER AND ASSAULT CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s attempted murder and assault convictions as against the weight of the evidence, over a two-justice dissent, determined there was no evidence defendant shared the shooter’s intent. It was alleged defendant was the driver when his passenger shot at and missed a person sitting in a parked car. The shooter was never identified. There was no evidence defendant knew the victim:

… [T]he question is whether defendant shared the shooter’s intent to kill or seriously injure the victim. Even assuming, arguendo, that the conviction is supported by legally sufficient evidence … , we conclude that the verdict is against the weight of the evidence … . Viewing the evidence in light of the elements of those crimes as charged to the jury … and considering that “a defendant’s presence at the scene of the crime, alone, is insufficient for a finding of criminal liability” … , here the People failed to prove beyond a reasonable doubt that defendant “shared the [shooter’s] intent to kill” or cause serious physical injury to the victim, or the intent to use the gun unlawfully against the victim … , particularly given the lack of evidence “that defendant knew that the [shooter] was armed at the time defendant transported him” … .

From the dissent:

Defendant drove the vehicle while the shooter fired several times at the parked vehicle in which the victim was sitting in the front passenger seat, and the victim heard someone say “yo” as soon as the gunshots started. The police found the parked vehicle’s driver’s side windows shattered and shell casings on the ground next to the vehicle. A permissible and eminently reasonable inference from the facts was that defendant stopped or slowed down the vehicle in order to allow the shooter to fire several shots at the parked vehicle … . In other words, defendant shared the shooter’s intent to use a gun to kill or cause serious physical injury to the victim and “intentionally aid[ed]” the shooter to engage in such conduct (Penal Law § 20.00). In addition, defendant fled from the scene after the gunshots were fired and collided with another vehicle. The driver of that vehicle testified that, when she asked defendant to exchange paperwork and information, he told her to “move the f*** out of the way,” before he pushed her vehicle with his vehicle and drove off again. People v Lathrop, 2024 NY Slip Op 02618, Fourth Dept 5-10-24

Practice Point: Here the appellate court found the evidence of attempted murder legally sufficient but the verdict against the weight of the evidence (a difficult concept).

 

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