W. L. Fahey, New York, NY (Yvonne Shivers of counsel), for
appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M.
Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Nancy
Fitzpatrick Talcott of counsel), for respondent.
C. DILLON, J.P. LEONARD B. AUSTIN SYLVIA O. HINDS-RADIX
HECTOR D. LASALLE, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Queens
County (Aloise, J.), rendered October 20, 2014, convicting
him of murder in the second degree and criminal possession of
a weapon in the second degree (two counts), upon a jury
verdict, and imposing sentence.
that the judgment is reversed, on the law, and the matter is
remitted to the Supreme Court, Queens County, for a new
defendant was convicted of murder in the second degree and
two counts of criminal possession of a weapon in the second
degree in connection with the shooting death of a man outside
the residence of Gary Gill in Queens. The People presented
the testimony of two eyewitnesses. One eyewitness testified
that shortly before the shooting, he saw a white Range Rover
with three people in it pull up outside Gill's residence,
and that Gill and another man, whom the eyewitness could not
identify, exited the vehicle. This eyewitness testified that
Gill was waving a gun, which Gill then gave to the other man,
and that Gill told the other man to shoot. The other man then
began shooting. The second eyewitness, however, testified
that he was the driver of the white Range Rover, that only
Gill was a passenger in the vehicle with him, and that Gill
did not have a gun. As they were driving back to Gill's
residence, the second eyewitness saw the defendant riding in
a car driven by another man. The Range Rover and the car
pulled up at Gill's driveway almost simultaneously. The
defendant exited the car holding a gun. The defendant chased
after the victim and began shooting.
the evidence in the light most favorable to the prosecution
(see People v Contes, 60 N.Y.2d 620), we find that
it was legally sufficient to establish the
defendant's' guilt beyond a reasonable doubt.
Moreover, in fulfilling our responsibility to conduct an
independent review of the weight of the evidence
(see CPL 470.15; People v. Danielson, 9
N.Y.3d 342), we nevertheless accord great deference to the
jury's opportunity to view the witnesses, hear the
testimony, and observe demeanor (see People v Mateo,
2 N.Y.3d 383, 410; People v Bleakley, 69 N.Y.2d 490,
495). On reviewing the record here, we are satisfied that the
verdicts of guilt were not against the weight of the evidence
(see People v Romero, 7 N.Y.3d 633).
reversal of the judgment is required because the Supreme
Court failed to provide the jury with an accomplice-in-fact
charge. "A defendant may not be convicted of any offense
upon the testimony of an accomplice unsupported by
corroborative evidence tending to connect the defendant with
the commission of such offense" (CPL 60.22). A
witness in a criminal action is an accomplice if he or she
"may reasonably be considered to have participated in...
the offense charged or an offense based upon the same or some
of the same facts or conduct which constitute the offense
charged" (People v Caban, 5 N.Y.3d 143, 154;
see CPL 60.22[b]). A witness who is a criminal
facilitator is an accomplice for corroboration purposes
(see People v Basch, 36 N.Y.2d 154, 158; People
v Lumnah, 81 A.D.3d 1175, 1176). The factual issue of
whether a particular witness is an accomplice should be
submitted to the jury if different inferences may reasonably
be drawn from the proof regarding complicity (see People
v Basch, 36 N.Y.2d at 157; People v Correa, 88
A.D.3d 810, 811).
different inferences may reasonably be drawn (see People
v Basch, 36 N.Y.2d at 157) as to whether the second
eyewitness drove Gill and the shooter to the scene, with the
knowledge that one or the other of them intended to use the
gun. Under these circumstances, the Supreme Court erred in
failing to provide the jury with an accomplice-in-fact
charge. The error was not harmless, because the evidence of
the defendant's guilt was not overwhelming. It is
possible that the jury, properly charged on whether to treat
the second eyewitness as an accomplice, and, if so, how to
consider his testimony, could have discounted his version of
the events. In that case, it was for the jury to decide
whether the remaining evidence established the
defendant's guilt beyond a reasonable doubt (see
People v Sage, 23 N.Y.3d 16, 27-29).
defendant's remaining contentions are either without
merit or need not be ...