People v. McLean

107 A.D.2d 167, 485 N.Y.S.2d 1019, 1985 N.Y. App. Div. LEXIS 48411

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1985
• Status: Published

Opinions

OPINION OF THE COURT

Carro, J.

The order granting the defendant’s motion to set aside the verdict of murder in the second degree, on the ground that the evidence was insufficient as a matter of law, should be affirmed. We are persuaded that the circumstantial evidence presented was insufficient to convict the defendant of acting alone or in concert with others to intentionally commit this crime.

The court below granted the defendant’s motion and dismissed the case, relying largely upon People v Williams (35 NY2d 783, revg 41 AD2d 711 [on dissent of Murphy, J.]), which dealt with a very similar factual matter. In this case, all the People have established was defendant’s presence near the scene of the crime. Although the defendant and at least two others were seen coming down the stairs of the building where the decedent was found dead, there was no evidence presented whatsoever to support the jury’s conclusion that defendant, either alone or acting in concert with others, intended to cause the death of the decedent or did cause the death of the decedent. A finding of murder in the second degree based on these facts had to be based on conjecture and speculation, both impermissible to support the jury’s verdict.

The decedent, shot twice in the head and once in the back, was obviously the victim of an intentional killing. The jury could also draw the conclusion that the defendant was at the scene around the time of the shooting from his statement, “I am not the shooter” and “I am not telling”. However, beyond that, the circumstantial evidence presented does not justify any further inferences by the jury implicating this defendant with the crime. No weapon was found, and it was unclear as to where the traces of blood on defendant’s shoes came from. As Justice Levy correctly stated in his order dismissing the verdict, “There is no evidence to connect the defendant with others who may have been at the scene, nor was there any evidence to connect the defendant with the decedent, nor is there any evidence to show motive on the part of the defendant to shoot the decedent.”

In a case based on circumstantial evidence the reasoning process of the jury is, of necessity, more complex; thus, close judicial scrutiny is necessary to ensure that the jury does not make inferences which are based not on evidence presented, but rather, on unsupported implications which are equivocal, at best. (People v Kennedy, 47 NY2d 196; People v Benzinger, 36 NY2d 29; People v Karpowski, 99 AD2d 118.) To sustain a conviction based on circumstantial evidence, the Court of Appeals has consistently held that the facts from which the inference of the defendant’s guilt is drawn must (1) be established with certainty; (2) be inconsistent with his innocence; and (3) exclude to a moral certainty every other hypothesis. (People v Way, 59 NY2d 361; People v Kennedy, 47 NY2d 196, supra; People v Benzinger, 36 NY2d 29, supra; People v Williams, 35 NY2d 783, supra; People v Cleague, 22 NY2d 363; People v Razezicz, 206 NY 249; People v Harris, 136 NY 423.)

While we do not require the People to prove defendant’s guilt to an “absolute or metaphysical certainty” (People v Harris, 306 NY 345, 351), the evidence presented here did not exclude to a moral certainty every other hypothesis except that of guilt. (Compare, People v Williams, supra.) There were only three people observed walking down the stairs from the scene of the shooting, but there is no evidence as to how many others may actually have been at the scene or involved in the shooting. The evidence affirmatively established that it was possible to leave the building from the fifth floor without using the staircase or passing through the courtyard. Thus, it was possible the actual shooter was never observed entering or leaving the building, a reasonable inference not inconsistent with defendant’s innocence. It is also quite possible the defendant was an unwilling witness to this crime. Obviously, mere presence at the scene of the crime is insufficient to convict defendant of acting in concert with the actual murderer.

The People argue the evidence, combined as a whole, at least established a connection between the defendant and two others, involving a plan to commit murder. This supposition, however, is based entirely on equivocal facts, and does not exclude a fair inference of defendant’s noninvolvement in such a scheme. It was shown that another person was first seen descending the stairs, and then, upon exiting the building, hailed a passing cab. Subsequently, the defendant and another were seen descending the stairs and also exiting the building. The person observed with the defendant left him once outside the building, and the defendant was then seen walking in the direction of the waiting cab. The person in the cab was seen yelling (although it is unclear as to what) in the direction of the defendant, but the defendant began to flee upon seeing the police. According to the People, from these facts it can be concluded that the first man seen leaving the building was responsible for securing a “getaway cab”, while the defendant and another completed the crime in question. The evidence of defendant’s flight is alleged to be further evidence of defendant’s involvement.

The People’s interpretation of this scenario, while logical, cannot support a conviction. As noted, it has been consistently held that in order to support a finding that a homicide was committed with an intent or plan to commit death, the evidence must establish adequate proof of such a design by each person charged, and “must be shown to exclude other fair inferences.” (People v Monaco, 14 NY2d 43, 45.) Without adequate proof of a shared intent with the principal actor, there is no community of purpose and therefore no basis for finding defendant acted in concert with the actual “shooter”. (Cf. People v La Belle, 18 NY2d 405; People v Monaco, supra.) Here there exists no evidence of any preconceived plan or relationship between defendant and others to commit murder. Even combining the above facts with evidence of defendant’s flight will not support the People’s contention since flight is but another form of equivocal circumstantial evidence. (See, e.g., People v Yazum, 13 NY2d 302, 304.) At best, all the evidence indicates is defendant’s presence, along with at least two others, at or near the scene of a murder, and is, therefore, insufficient to support the People’s contention that the defendant, or even the actual gunman, acted in concert with others to commit murder.

The soundness of Judge Levy’s decision dismissing the case against the defendant becomes even more apparent after comparing the facts in this case to the facts and holding in People v Ligouri (284 NY 309) in which the Court of Appeals set aside the defendant’s conviction of murder in the second degree despite the existence there of strong proof of such a criminal relationship. In Ligouri, it was held that the evidence established beyond a reasonable doubt that the defendant was with the actual gunman before the shooting, accompanied him to the place of the shooting, and then fled with him. One witness, although unable to identify either of the two defendants, testified to seeing two men pursuing and shooting a third man. Additional evidence established that the defendant anticipated violence, and that one of the defendants had stated after the incident, “We let him have it.” In light of all this evidence the court still ruled that such proof, as here, “falls far short of establishing that he aided, abetted or otherwise participated in the homicide” (supra, at p 318; emphasis added).

Accordingly, a finding of murder in the second degree cannot be justified. Defendant’s guilt, based on circumstantial evidence, has not been established to a moral certainty, and is, therefore, insufficient to support the People’s contention that the defendant, either alone or acting in concert with others, caused the death of the decedent or intended to.

Order entered June 30,1983 in Supreme Court, Bronx County (David Levy, J.), granting defendant’s motion to set aside the jury’s verdict, as a matter of law, and dismissing the indictment, should be affirmed.