People v. Walker

62 A.D.2d 1025, 403 N.Y.S.2d 549, 1978 N.Y. App. Div. LEXIS 11088

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered November 14, 1975, convicting him of attempted murder in the second degree, robbery in the third degree and criminal possession of a dangerous weapon in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law and the facts, by reversing the convictions of robbery in the third degree and criminal possession of a dangerous weapon in the second degree, and the sentences imposed thereon, and the counts upon which such convictions are based are dismissed. As so modified, judgment affirmed. The conviction of robbery is not supported by the evidence. Defendant’s complicity in the robbery must be inferred circumstantially from the fact that he appeared upon the scene after the robbery and fired a gun. However, what the evidence also shows is that defendant employed the gun when he saw a stranger with a shovel chasing a codefendant down the street while shouting obscenities and racial epithets. The shooting is, therefore, explainable on two equally rational bases. The single guilty inference necessary to support a verdict based on circumstantial evidence is lacking (see Richardson, Evidence [Prince, 10th ed], § 148). On the proof offered at the trial, defendant could not have committed the crime of attempted murder in the second degree without also concomitantly committing the crime of possession of a dangerous weapon (see CPL 1.20, subd 37). Conviction on the former charge entitles him to dismissal of the latter charge (see CPL 300.40, subd 3, par [b]). On the facts in this record the jury could properly find defendant guilty of attempted murder in the second degree. Hopkins, J. P., Martuscello, Latham and Shapiro, JJ., concur.